MONTGOMERY, Ala. (aiexpress) – An Alabama inmate, Kenneth Smith, slated to be the first person in the United States executed by nitrogen gas, is seeking to block the untested method through a federal appeals court.
Scheduled for Thursday, Smith’s execution involves placing a respirator-type mask on his face to replace breathing air with pure nitrogen, depriving him of the oxygen necessary for survival. While three states—Alabama, Oklahoma, and Mississippi—have authorized nitrogen hypoxia as an execution method, no state has previously implemented it.
The appeal, presented to the 11th U.S. Circuit Court of Appeals, argues that Alabama is using Smith as a “test subject” for an experimental execution method, given his survival of the state’s previous attempt to execute him by lethal injection in 2022. Smith’s attorneys claim the nitrogen hypoxia protocol is fraught with unknowns and potential problems, potentially leading to a painful death.
Alabama Attorney General Steve Marshall’s office contends that Smith’s concerns are speculative and asserts that breathing 100% nitrogen gas would cause death, with experts agreeing that nitrogen hypoxia induces unconsciousness within seconds and causes death within minutes. The state argues that the execution should proceed, dismissing concerns about potential suffering.
U.S. District Judge R. Austin Huffaker previously rejected Smith’s request for an injunction, acknowledging the novelty of the nitrogen hypoxia method but drawing parallels to the initial introduction of lethal injection.
Smith, convicted in 1988 for the murder-for-hire of a preacher’s wife, argues that attempting a second execution after surviving one would violate the federal prohibition on cruel and unusual punishment.
As the execution date approaches, Smith has petitioned the U.S. Supreme Court to stay the execution and consider this constitutional question. The filing comes after the Alabama Supreme Court rejected Smith’s claim in a recent ruling.