US' First Nitrogen Execution Can Go Forward: Judge

Kenneth Eugene Smith's attorneys say they will appeal
By Newser Editors and Wire Services
Posted Jan 11, 2024 12:30 AM CST
Federal Judge OKs Nation's First Nitrogen Execution
This undated photo provided by the Alabama Department of Corrections shows inmate Kenneth Eugene Smith, who was convicted in a 1988 murder-for-hire slaying of a preacher's wife.   (Alabama Department of Corrections via AP, File)

Alabama will be allowed to put an inmate to death with nitrogen gas later this month, a federal judge ruled Wednesday, clearing the way for what would be the nation's first execution under a new method the inmate's lawyers criticize as cruel and experimental, the AP reports. US District Judge R. Austin Huffaker rejected Alabama inmate Kenneth Eugene Smith's request for a preliminary injunction to stop his scheduled Jan. 25 execution by nitrogen hypoxia. Smith's attorneys have said Alabama is trying to make Smith the "test subject" for an untried execution method after he survived the state's previous attempt to put him to death by lethal injection.

Robert Grass, the inmate's attorney, said his team will appeal the decision but he declined further comment. Alabama Attorney General Steve Marshall's office was expected to issue a statement Wednesday afternoon. The question of whether the planned execution can ultimately proceed could end up before the US Supreme Court. The state's plans call for placing a respirator-type face mask over Smith's nose and mouth to replace breathable air with nitrogen, causing him to die from lack of oxygen. Three states—Alabama, Mississippi, and Oklahoma—have authorized nitrogen hypoxia as an execution method, but no state has attempted its use thus far.

Smith's attorneys had argued the new protocol is riddled with unknowns and potential problems that violate the constitutional ban on cruel and unusual punishment. Smith, now 58, was one of two men convicted of the murder-for-hire of a preacher's wife in 1988 that rocked a small north Alabama community. Prosecutors said Smith 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. Smith survived the state's prior attempt to execute him. The Alabama Department of Corrections tried to give Smith a lethal injection in 2022 but called it off when authorities could not connect the two intravenous lines needed to proceed.

(More nitrogen gas stories.)

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