The US Supreme Court, on Wednesday, rejected a plea to halt the execution of Alabama death row inmate Kenneth Smith, scheduled for this week using a novel method—nitrogen gas. Smith, facing execution within a 30-hour window starting Thursday, was involved in a 1988 murder-for-hire case. Alabama had abandoned an attempt to execute him by lethal injection 14 months ago due to difficulties in setting an intravenous line before the execution warrant expired.
Smith and his legal team sought a Supreme Court intervention last week, arguing that a second attempt to execute him would amount to cruel and unusual punishment, violating the Eighth and 14th amendments. Despite the request, the justices declined without providing an explanation or noting any dissents.
The impending execution by nitrogen hypoxia is an untested method, approved only by Alabama, Oklahoma, and Mississippi. Among them, Alabama, which adopted the method in 2018, is the sole state with a protocol outlined for it, involving the delivery of nitrogen through a mask.
A separate appeal filed with the US Court of Appeals for the Eleventh Circuit also failed to secure a stay for Smith’s execution. The court stated that Smith had not demonstrated a substantial likelihood of success on the merits of his claims. Smith’s legal team had contended that Alabama altered the execution plans, changing the schedule for his last meal in response to evidence that he had been vomiting repeatedly.
The legal wrangling continues, raising concerns about the secrecy surrounding the nitrogen hypoxia protocol and the potential for excessive pain. Experts fear that Smith could vomit into the mask during the execution, leading to choking and a tortuous death.
United Nations experts have expressed alarm over Smith’s impending execution, highlighting the possibility of a painful and humiliating death with nitrogen hypoxia. Dr. Joel Zivot, an associate professor of anesthesiology and surgery at Emory University, emphasized the need for the method to align with constitutional requirements of non-cruelty and non-torture.
Smith’s case gains significance as it marks only the second time in US history that a state attempts to execute an inmate a second time after an initial failure. The state argues for the use of nitrogen hypoxia, describing it as “perhaps the most humane method of execution ever devised.” However, international human rights concerns persist, with the UN High Commissioner for Human Rights urging Alabama to halt the execution, citing potential torture or cruel treatment.
As the legal battles unfold and Alabama readies for the unprecedented nitrogen execution, ethical considerations and questions about the untested nature of the chosen method continue to surround Kenneth Smith’s case.
