MONTGOMERY, Ala. – An attorney for an Alabama inmate set to be the nation's first person ever put to death by nitrogen gas asked a federal appeals court Friday to block the upcoming execution using the “untested methods.”
Kenneth Smith, 58, is scheduled to be executed Thursday, when a respirator-type mask will be put on his face to replace his breathing air 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.
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The 11th U.S. Circuit Court of Appeals heard diverging descriptions of the humaneness and potential risks of the proposed method in Smith's appeal of a federal judge’s Jan. 10 decision to let the execution go forward. The three judges on the panel asked questions about the proposed method, including claims that it could cause Smith to choke to death on his own vomit, but did not indicate when they will rule.
Smith’s attorney, Robert Grass, told the judges that the state will “attempt to execute Kenny Smith under unprecedented circumstances," arguing that the plan to deliver the nitrogen gas through a face mask is flawed and could subject Smith to a prolonged and unconstitutionally painful execution.
“This is the first time this will ever be attempted. There is no data on exactly what’s going to happen and how this will go forward,” Grass said.
Some states are looking for new ways to execute inmates because the drugs used in lethal injections, the most common execution method in the United States, are increasingly difficult to find. If Smith’s execution by nitrogen hypoxia is carried out, it will be the first new execution method used in the United States since lethal injection was first used in 1982.
The Alabama attorney general's office urged the court to let the execution proceed.
“Alabama has adopted the most painless and humane method of execution known to man,” Alabama Solicitor General Edmund LaCour told the judges.
Courts require inmates challenging their execution method to suggest an alternate available method. During arguments Friday, Circuit Judge Charles Wilson noted that Smith, when fighting past attempts to execute him by lethal injection, had previously suggested nitrogen as an alternative method. At the time the state had not developed a protocol for nitrogen executions and it was unclear when the state would do so.
Grass said they are challenging the state’s plan to use a mask to deliver the nitrogen because there is a risk of oxygen leaking in, possibly subjecting Smith to a prolonged execution and leaving him in a vegetative state instead of killing him. He argued that there is also a possibility that Smith could choke to death on his own vomit.
The state maintained those scenarios are unlikely to happen. Wilson asked if the execution would be stopped if Smith vomited into the mask, and LaCour said the state would not halt the execution if the nitrogen gas had begun flowing.
“If he vomits during the execution with the mask on, you’re telling me that the state will not stop the execution, they will permit him to choke on his vomit?” Wilson asked.
LaCour responded that there is not a “substantial risk” of Smith vomiting. Smith will not feel pain, LaCour argued, because the nitrogen would render him unconscious “almost instantaneous.”
Smith was one of two men convicted of the 1988 murder-for-hire of a preacher’s wife. Prosecutors said Smith 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 insurance. John Forrest Parker, the other man convicted in the case, was executed by lethal injection in 2010. Sennett's husband killed himself 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 were unable to 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 lawyers said.
Smith's attorney also argued that Alabama is violating his due process rights by scheduling his execution ahead of other inmates who requested nitrogen as their preferred execution method and while he has ongoing appeals.
Smith has argued in a separate case that after surviving one execution attempt it would violate the federal ban on cruel and unusual punishment for the state to make a second attempt to execute him. On Friday, Smith asked the U.S. Supreme Court to stay the execution to consider that question.