Aiexpress – On Friday, a federal appeals court will hear the request of an Alabama prisoner who is about to become the first person in the nation to die by nitrogen gas.
Kenneth Smith, 58, is going to be put to death on Thursday. A respirator-style mask will be put over his face to replace the air he breathes with pure nitrogen, which will keep him from getting the oxygen he needs to stay alive. Alabama, Oklahoma, and Mississippi are the only states that have approved nitrogen hypoxia as a way to put someone to death, but no other state has tried to use it before.
Some states are searching for alternative methods of executing inmates due to the scarcity of the drugs used in lethal injections, which is the most prevalent form of execution in the United States. Should Smith’s execution proceed using nitrogen hypoxia, it would mark the first introduction of a new execution method since the inception of lethal injection in 1982.
The 11th U.S. Circuit Court of Appeals will hear arguments Friday afternoon. Smith’s lawyers will be appealing a federal judge’s decision on January 10 to go ahead with the execution. They will say that Alabama is trying to use Smith as a “test subject” for an experimental method of execution because he lived through the state’s first attempt to kill him by lethal injection in 2022. They say that the new nitrogen hypoxia protocol is full of unknowns and possible problems that could cause him to die in terrible pain.
“Because Mr. Smith will be the first condemned person subject to this procedure, his planned execution is an experiment that would not be performed or permitted outside of this context,” Smith’s attorneys stated in a court filing on Monday. They further claimed that the state violated his due process rights by scheduling the execution while his appeals were underway.
Alabama Attorney General Steve Marshall’s office will ask the court to let the execution proceed. The state called Smith’s concerns speculative and has predicted the nitrogen gas will “cause unconsciousness within seconds, and cause death within minutes.”
“Smith admits that breathing 100% nitrogen gas would result in … death. And the experts agree that nitrogen hypoxia is painless because it causes unconsciousness in seconds,” the state argued.
U.S. District Judge R. Austin Huffaker denied Smith’s request for an injunction to halt the execution earlier this month. Huffaker recognized that nitrogen hypoxia as a means of execution is relatively new, but pointed out that lethal injection was also once a new method.
Smith was one of two men found guilty of killing a preacher’s wife for money in 1988. Smith and the other man were each paid $1,000 to kill Elizabeth Sennett so that her husband, who was heavily in debt and wanted to get insurance, could get it. The other guy convicted in the case, John Forrest Parker, was put to death by lethal injection in 2010. Court records show that Sennett’s husband killed himself when the murder probe focused on him as a suspect.
In 2022, Alabama tried to put Smith to death by lethal injection, but the execution was stopped before the drugs were given because the two necessary intravenous lines could not be connected to Smith’s veins. His lawyers said Smith was strapped to the bed for almost four hours during the attempt to kill him.
Smith has also said in a different case that if the state tried to kill him again after he had already been put to death once, it would be against the law because of the federal ban on cruel and unusual punishments. For that reason, Smith asked the U.S. Supreme Court to put off the execution on Friday. The filing came after Smith’s claim was turned down by the Alabama Supreme Court last week.