MONTGOMERY, Ala. — An Alabama inmate expected to be the first person in the United States to be put to death with nitrogen gas is waiting to see if he will get a last-minute reprieve from federal courts in his bid to stop the execution.
Unless blocked in court, Alabama plans to execute Kenneth Eugene Smith, 58, Thursday via the never-used method of nitrogen hypoxia.
The U.S. Supreme Court denied Smith’s request for a stay on Wednesday, rejecting his argument that it would be unconstitutional for the state to attempt a second execution after a botched lethal injection in 2022. The decision marks the first of Smith’s two legal attempts to have his to stop execution regularly. .
Smith also asked the 11th U.S. Circuit Court of Appeals to block the execution, but the court had not ruled as of Wednesday afternoon. The 11th Circuit is considering Smith’s appeal of a federal judge’s Jan. 10 decision to allow the execution to proceed. Whatever the court decides, it is expected to be appealed to the U.S. Supreme Court.
Smith’s attorneys argued that the state is trying to make him a test subject for an experimental execution method. They argued that the state’s plan, which uses a gas mask, puts him at risk of choking on his own vomit or suffering a prolonged and painful death.
Some states are looking for new ways to execute prisoners as the drugs used in lethal injections, the most common execution method in the United States, become increasingly difficult to find. If Smith’s execution is carried out by nitrogen hypoxia, it will be the first new execution method used in the United States since lethal injection was first used in 1982.
On Tuesday, the 11th Circuit asked a federal judge to review new information from Smith that he was continuously vomiting prior to the execution, increasing the risk of complications. U.S. District Judge R. Austin Huffaker Jr. ruled Wednesday that the new information would not change his decision to go ahead with the execution.
Without a court-ordered stay, Alabama is moving ahead with plans to carry out the execution.
The execution method involves placing a respirator face mask over the nose and mouth to replace the inhaled air with nitrogen, which causes death from lack of oxygen. Three states – Alabama, Mississippi and Oklahoma – have approved nitrogen hypoxia as an execution method, but so far no state has attempted to use it.
The Alabama attorney general’s office and Smith’s attorney presented differing stories about the humanity and risks of execution by nitrogen hypoxia in oral arguments before the 11th Circuit.
Smith’s lawyers said it is fraught with unknowns and potential problems, violating a constitutional ban on cruel and unusual punishment.
“This is the first time this has ever been attempted. There is no data on what exactly will happen and how this will proceed,” lawyer Robert Grass told the court.
Alabama Attorney General Edmund LaCour had urged the justices to go ahead with the execution, saying that “Alabama has adopted the most painless and humane method of execution known to man.”
The state predicted in court filings that the gas will cause a prisoner to lose consciousness within seconds and cause death within minutes. Critics of the untested method say the state cannot predict what will happen and it is unknown what Smith will feel after the warden turns on the gas.
Alabama previously tried to execute Smith by lethal injection in 2022, but stopped it before the drugs were administered because authorities could not connect the two intravenous lines to his veins. Smith’s attorneys say he was strapped to the gurney for nearly four hours.
Smith is one of two men convicted in the 1988 murder of a pastor’s wife that rocked a small north Alabama community. Prosecutors said he and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.
Sennett, 45, was found dead in her Colbert County home on March 18, 1988, with eight stab wounds to the chest and one on each side of her neck, the coroner said. Her husband, Charles Sennett Sr., committed suicide when the investigation focused on him as a suspect, court documents show. John Forrest Parker, the other man convicted of the murder, was executed in 2010.