Alabama is on the brink of conducting the nation’s first-ever execution by nitrogen gas, as the U.S. Supreme Court and a federal appeals court both declined to intervene in the case. Kenneth Smith, convicted of a 1988 murder, is set to be executed using nitrogen gas after the state’s previous attempt to execute him by lethal injection in November 2022 was botched.
The planned execution involves placing a mask on Smith’s face and pumping nitrogen into it, ultimately depriving him of oxygen until death. The state intends to carry out the execution in Atmore, Alabama, on Thursday evening, pending any additional legal interventions.
The Supreme Court rejected Smith’s appeal of a state court case, where his lawyers argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments. The court’s decision did not provide an explanation or note any dissents.
Subsequently, a federal appeals court also declined to halt the execution in response to a separate challenge by Smith’s lawyers. One of the three judges hearing the case dissented. Smith’s legal team indicated their intention to appeal this decision to the Supreme Court, potentially providing another opportunity for the justices to intervene.
The state’s choice of nitrogen gas, a method known as nitrogen hypoxia, has been used in assisted suicide in Europe and other regions. Alabama officials assert that the method is painless and will induce rapid unconsciousness before death.
However, Smith and his lawyers express concerns about the adequacy of the state’s newly established protocol to prevent potential issues that could lead to severe suffering. They argue that if the mask has a poor fit, oxygen could enter and prolong Smith’s suffering. Additionally, if he experiences nausea during the process, he could be at risk of “choking on his own vomit,” as mentioned in court documents.
The scheduled execution is set for around 6 p.m. Central time at the William C. Holman Correctional Facility, with the possibility of being carried out any time until 6 a.m. the following morning. Recent reports from Smith indicate increased nausea as anxiety builds over the impending execution, heightening concerns about potential mishaps. Alabama prison officials have stated that they do not plan to permit him to have any food after 10 a.m. on Thursday to minimize the risk of vomiting during the procedure.
The use of nitrogen gas for executions raises ethical and practical questions, particularly regarding its potential to cause pain and suffering. While proponents argue that it offers a more humane alternative to traditional execution methods, critics contend that uncertainties and risks associated with the process necessitate careful consideration and scrutiny.
Smith’s case underscores the ongoing debates surrounding the death penalty, execution methods, and the legal and ethical dimensions of capital punishment in the United States. The reluctance of the Supreme Court to intervene in last-minute death penalty appeals reflects broader tensions and debates within the legal and moral landscape surrounding the death penalty.
