By Canadian Press

Federal court says Alabama can carry out first nitrogen gas execution; Supreme Court appeal expected

Jan 24, 2024 | 4:57 PM

MONTGOMERY, Ala. (AP) — Alabama will be allowed to put an inmate to death with nitrogen gas, a federal appeals court ruled Wednesday, refusing to block what would be the nation’s first execution by a new method since 1982.

A panel of the 11th U.S. Circuit Court of Appeals rejected Kenneth Eugene Smith’s request for an injunction to stop his scheduled execution by nitrogen hypoxia Thursday. Smith’s lawyers have argued that the state is trying to make him the test subject for an untried execution method and are expected to appeal to the U.S. Supreme Court.

The method involves putting a respirator-type face mask over the nose and mouth to replace breathable air with nitrogen, causing death from lack of oxygen. The state predicted in court filings that the gas will cause an inmate to lose consciousness within seconds and cause death within minutes. Critics of the untested method say the state can’t predict what will happen and what Smith will feel after the warden switches on the gas.

Some states are looking for new ways to execute death row inmates because the drugs used in lethal injections, the most common execution method in the United States, have become difficult to find. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but no state has attempted to use it so far.

The appeals court ruling comes after oral arguments in which the Alabama attorney general’s office and Smith’s lawyer presented diverging accounts of the humaneness and risks execution by nitrogen hypoxia.

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Smith’s attorneys said it is riddled with unknowns and potential problems in violation of a constitutional ban on cruel and unusual punishment.

“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,” attorney Robert Grass told the court.

The American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is not an acceptable euthanasia method for most mammals because the experience of oxygen deprivation “is distressing.” And experts appointed by the U.N. Human Rights Council cautioned that they believe the execution method could violate the prohibition on torture.

Alabama Solicitor General Edmund LaCour had urged the judges to let the execution proceed, saying, “Alabama has adopted the most painless and humane method of execution known to man.”

Alabama previously tried to execute Smith by lethal injection in 2022 but called it off before the drugs were administered because authorities were unable to connect the two intravenous lines to his veins. Smith’s attorneys said he was strapped to the gurney for nearly four hours.

On Wednesday, the U.S. Supreme Court denied Smith’s request for a stay, rejecting his argument that it would be unconstitutional for the state to attempt a second execution after he survived the first.

Smith, 58, is one of two men convicted in the murder-for-hire slaying of a preacher’s wife in 1988 that rocked a small north Alabama community. Prosecutors said he and the other man 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.

Sennett, 45, was found dead March 18, 1988, in her home in Colbert County with eight stab wounds in the chest and one on each side of her neck, according to the coroner. Her husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents.

Smith’s initial 1989 conviction was overturned on appeal, but he was retried and convicted again in 1996. The jury recommended a life sentence by a vote of 11-1, but a judge overrode that and sentenced him to death. Alabama no longer lets judges override jury decisions in death penalty cases.

John Forrest Parker, the other man convicted in the slaying, was executed in 2010.

Kim Chandler, The Associated Press