Alabama has been given the green light to move forward with its nitrogen gas execution plan, making it the first state in the U.S. to do so. On Wednesday, a federal appeals court rejected arguments that the use of nitrogen gas violates the constitutional prohibition against cruel and unusual punishment.
Kenneth Eugene Smith is scheduled to undergo nitrogen hypoxia, a method in which the person breathes nitrogen exclusively and succumbs to oxygen deprivation, resulting in death.
The 11th U.S. Circuit Court of Appeals has issued a majority ruling that supports the recent decision made by a federal judge in Alabama. Both rulings are in favor of the state Corrections Department’s plan to use nitrogen gas in Smith’s execution.
The majority opinion acknowledges that death by nitrogen hypoxia is a new and innovative method. They state that, based on Supreme Court precedent, the use of nitrogen hypoxia alone cannot be considered cruel and unusual punishment, thus not violating the Eighth Amendment.
Circuit Judge Jill Pryor expressed her concerns about the potential risks that Smith might face in the death chamber due to the use of an untested method.
“The cost, I fear, will be the loss of Mr. Smith’s human dignity, as well as our own,” she expressed concern.
Smith’s attorneys were not available for immediate comment.
Despite Smith’s lawyers petitioning the U.S. Supreme Court to review his case this month, his request for a stay of execution was rejected by the justices on Wednesday. However, there is still a possibility that the case could come before them again in the final hours due to other ongoing legal challenges.
In 2018, Alabama made the decision to authorize the use of nitrogen hypoxia for executions due to the challenges faced with the availability of the required drugs for lethal injections.
During the appeals court hearing on Friday, the circuit court judges carefully considered the arguments put forth by Smith’s defense team. They raised the point that the unique method of nitrogen hypoxia should be subject to further examination. Circuit Court Judge Charles Wilson highlighted the fact that Smith himself had originally consented to nitrogen hypoxia instead of lethal injection. It should be noted, however, that this decision was made before the state’s protocol for execution had been established.
Smith’s attorney, Robert Grass, countered by stating that it is not the method itself that raises concerns, but rather the uncertainties surrounding Alabama’s protocol.
Breathing in nitrogen, a naturally abundant gas in the Earth’s atmosphere, can have harmful effects on the body if it is not mixed with the right amount of oxygen. Medical experts warn that inhaling nitrogen without an adequate supply of oxygen can cause various physiological issues, including excessive tiredness, difficulty breathing, vomiting, and in severe cases, even death.
The state plans to administer the execution by securing a mask to Smith’s face, through which only nitrogen gas will be delivered. The procedure details include certain redacted sections that pertain to the calibration of oxygen-monitoring equipment, the operation of the nitrogen hypoxia system, including safety protocols, and the shutdown procedure of the system.
Medical experts explain that if Smith is breathing in nitrogen while wearing a mask, even a minimal amount of oxygen entering the mask could potentially extend the time it takes for him to die. This can lead to a slow progression of asphyxiation.
Smith’s legal team is arguing that if there is any fault with how the mask delivers nitrogen, it could potentially cause him “superadded pain.” They are concerned about the possible risks, such as vomiting and choking, feeling suffocated, or even ending up in a vegetative state.
In a recent statement, State Attorney General Steve Marshall dismissed the concerns raised by Smith as mere speculation.
In a recent interview, Michael Sennett, one of her adult sons, expressed his sole desire for justice on behalf of his mother.
Sennett expressed his indifference towards the manner in which Smith departs, emphasizing that what truly matters is that he departs.
