Federal court approved Kenneth Eugene Smith’s execution by nitrogen gas

Alabama will be allowed to carry out the country’s first inmate execution by nitrogen gas after a federal appeals court ruled Wednesday — just one day before a convicted killer is set to die by the new method.

The 11th US Circuit Court of Appeals rejected convicted killer Kenneth Eugene Smith’s request for a preliminary injunction to stop his scheduled Jan. 25 execution by the new method, in which he would be delivered only nitrogen and would die from a lack of oxygen.

The judges said in a 3-2 decision there was “no doubt that death by nitrogen hypoxia is both new and novel” but that Smith had failed to prove his arguments that the experimental method violates the constitutional ban on cruel and unusual punishment.

“Because we are bound by Supreme Court precedent, Smith cannot say that the use of nitrogen hypoxia, as a new and novel method, will amount to cruel and unusual punishment in violation of the Eighth Amendment by itself,” the majority wrote in its opinion.

Circuit Judge Jill A. Pryor dissented from the decision, saying there were “real doubts” about the protocol and what Smith would experience.

“He will die. The cost, I fear, will be Mr. Smith’s human dignity, and ours,” Pryor wrote in a dissent.

The federal ruling is the second this month that shot down Smith’s attempts to halt the execution, in which his lawyers argued that the state is trying to make the convicted killer the “test subject” for an untried execution method after he survived the state’s previous attempt to put him to death by lethal injection.

Smith’s lawyers are expected to appeal to the US Supreme Court in a last-ditch effort to stop Thursday’s scheduled execution.

The legal team had already tried to request a stay in the highest court, but the Supreme Court rejected Wednesday its argument that it would be unconstitutional for the state to attempt a second execution after he survived the first.

“Two courts have now rejected Smith’s claims,” Alabama Attorney General Steve Marshall said following the court ruling. “I remain confident that the Supreme Court will come down on the side of justice, and that Smith’s execution will be carried out tomorrow.”

The Alabama Department of Corrections tried to give Smith a lethal injection in 2022 but called it off when officials failed to connect the two veins needed to proceed. Smith told The Guardian this week that the experience left him with a litany of mental disabilities, including post-traumatic stress disorder.

Since the failed attempt, the drugs used in lethal injections have become rare, leading Alabama to authorize nitrogen hypoxia as an execution method.

It involves placing a respirator-type face mask over the nose and mouth to replace breathable air with nitrogen. The state predicts that Smith will lose consciousness within seconds and die within minutes, but critics blasted the method as too experimental to understand the true effects.

Barring any last-minute intervention, Smith’s nitrogen gas execution will mark the first time a new method has been used since lethal injection was introduced in 1982.

“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,” Smith’s attorney Robert Grass argued in court.

Smith, now 58, was one of two men convicted of the murder-for-hire of a preacher’s wife in 1988. They were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.

With Post Wires