An Alabama convict turns to the appeals court in a bid to block the first-ever nitrogen gas execution.
Breaking News: Alabama convict turns to appeals court in bid to block first-ever…
An attorney for an Alabama inmate set to be the nation’s first person ever put to death by nitrogen gas asked a federal appeals court Friday to block the upcoming execution using “untested methods.”
Kenneth Smith, 58, is scheduled to be executed Thursday, when a respirator-type mask will be put on his face to replace his breathing air with pure nitrogen, depriving him of the oxygen needed to stay alive. Three states—Alabama, Oklahoma, and Mississippi—have authorized nitrogen hypoxia as an execution method, but no state has previously attempted to use it.
The 11th U.S. Circuit Court of Appeals heard diverging descriptions of the humaneness and potential risks of the proposed method in Smith’s appeal of a federal judge’s Jan. 10 decision to let the execution go forward. The three judges on the panel asked questions about the proposed method, including claims that it could cause Smith to choke to death on his own vomit, but did not indicate when they would rule.
Smith’s attorney, Robert Grass, told the judges that the state will “attempt to execute Kenny Smith under unprecedented circumstances,” arguing that the plan to deliver the nitrogen gas through a face mask is flawed and could subject Smith to a prolonged and unconstitutionally painful execution.
“This is the first time this will ever be attempted. There is no data on exactly what’s going to happen or how this will go forward,” Grass said.
Some states are looking for new ways to execute inmates because the drugs used in lethal injections, the most common execution method in the United States, are increasingly difficult to find. If Smith’s execution by nitrogen hypoxia is carried out, it will be the first new execution method used in the United States since lethal injection was first used in 1982.
The Alabama attorney general’s office urged the court to let the execution proceed.
“Alabama has adopted the most painless and humane method of execution known to man,” Alabama Solicitor General Edmund LaCour told the judges.
Kenneth Eugene Smith was convicted in the 1988 murder-for-hire slaying of a preacher’s wife. He is slated to be the first American inmate ever executed by nitrogen hypoxia. (Alabama Department of Corrections via AP, File)
Courts require inmates challenging their execution method to suggest an alternate available method. During arguments on Friday, Circuit Judge Charles Wilson noted that Smith, when fighting past attempts to execute him by lethal injection, had previously suggested nitrogen as an alternative method. At the time, the state had not developed a protocol for nitrogen executions, and it was unclear when the state would do so.
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