MONTGOMERY, Alabama. — An Alabama inmate who will be the first person in the country executed with nitrogen gas will ask a federal appeals court Friday to block the next execution using the untested method.
Kenneth Smith, 58, is scheduled to be executed Thursday, when a respirator-style mask will be placed over his face to replace the air he breathes with pure nitrogen, depriving him of the oxygen needed to stay alive. Three states (Alabama, Oklahoma, and Mississippi) have authorized nitrogen hypoxia as an execution method, but no state has previously attempted to use it.
The 11th U.S. Circuit Court of Appeals will hear arguments Friday afternoon, when Smith’s attorneys will appeal a federal judge’s Jan. 10 decision to allow the execution to proceed, arguing that Alabama is trying to make Smith the “test subject” for an experimental execution method. after he survived the state’s previous attempt to execute him by lethal injection in 2022. They maintain that the new nitrogen hypoxia protocol is fraught with unknowns and potential problems that could subject him to an agonizing death.
“Because Mr. Smith will be the first convicted person subject to this procedure, his planned execution is an experiment that would not be conducted or permitted outside of this context,” Smith’s attorneys wrote in Monday’s court filing. They also argued that the State violated his due process rights by scheduling the execution when appeals were pending.
Alabama Attorney General Steve Marshall’s office will ask the court to allow the execution to take place. The state called Smith’s concerns speculative and has predicted that nitrogen gas “will cause unconsciousness in seconds and death in minutes.”
“Smith admits that breathing 100% nitrogen gas would result in… death. And experts agree that nitrogen hypoxia is painless because it causes loss of consciousness in seconds,” the State argued.
Lethal injection is the most widely used method of execution in the United States, but as drugs have become more difficult to obtain, states have sought alternative methods. If Smith’s execution is carried out using nitrogen hypoxia, it will be the first new execution method used in the United States since lethal injection was first used in 1982.
U.S. District Judge R. Austin Huffaker earlier this month denied Smith’s request for an injunction to stop the execution. Huffaker acknowledged that execution by nitrogen hypoxia is a new method, but noted that lethal injection, now the most common execution method in the country, once was as well.
Smith was one of two men convicted of the murder-for-hire of a preacher’s wife in 1988. Prosecutors said Smith and the other man were paid $1,000 each to kill Elizabeth Sennett on behalf of her husband, who He was deeply in debt and wanted to collect on the insurance. John Forrest Parker, the other man convicted in the case, was executed by lethal injection in 2010. Sennett’s husband committed suicide when the murder investigation focused on him as a suspect, according to court documents.
Alabama attempted to execute Smith by lethal injection in 2022, but the state called off the execution before the lethal drugs were administered because authorities could not connect the two required intravenous lines to Smith’s veins. Smith was strapped to the gurney for nearly four hours during that execution attempt, his attorneys said.
In a separate case, Smith has also argued that after surviving an execution attempt, if the state made a second attempt to execute him, it would violate the federal ban on cruel and unusual punishment. Smith asked the U.S. Supreme Court on Friday to stay the execution to consider that issue. The filing came after the Alabama Supreme Court rejected Smith’s claim in a ruling last week.