The United States Supreme Court and a federal appeals court declined to intervene on Wednesday to prevent Alabama from carrying out the nation’s first nitrogen gas execution, keeping the state on pace to employ the new procedure to murder a death row inmate.
Alabama intends to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state failed to execute him via lethal injection in November 2022.
Barring any more judicial intervention, prison officials intend to transport him to the execution chamber in Atmore, Alabama, on Thursday evening, slap a mask over his face, and pump nitrogen into it, depriving him of oxygen until he dies.
The Supreme Court declined to hear Mr. Smith’s appeal of a state court decision, in which his lawyers contended that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments. The court’s order did not give an explanation or list any dissenters.
Hours later, in response to a separate petition by Mr. Smith’s lawyers, a federal appeals court declined to postpone the execution due to the disagreement of one of the three judges who heard the case. Mr. Smith’s lawyers said they would also take the case to the Supreme Court, perhaps giving the justices another opportunity to interfere, though they have been hesitant to do so in last-minute death penalty cases in recent years.
Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers argue that the approach, known as nitrogen hypoxia, is painless and will lead Mr. Smith to lose consciousness before his death.
However, Mr. Smith and his lawyers have expressed concern that the state’s newly established process is insufficient to prevent problems that could cause Mr. Smith significant suffering. The lawyers stated in court documents that if the mask did not fit properly, it may allow oxygen in and prolong Mr. Smith’s misery, or if he became sick, he could be “left to choke on his own vomit.”
The execution is planned for 6 p.m. Central time at the William C. Holman Correctional Facility, although it might take place at any time until 6 a.m. the following morning.
Mr. Smith has recently reported feeling increasingly nauseated as his worry about the upcoming execution builds, creating concerns among his lawyers about a catastrophe during the execution. Alabama prison officials announced this week that they will not allow him to eat after 10 a.m. on Thursday in an effort to reduce the probability that he vomits.