Alabama can proceed with its plan to conduct the first execution in the United States with nitrogen gas after a federal appeals court on Wednesday was not convinced the method violates the constitutional ban on cruel and unusual punishment.
Barring any last-minute court or state intervention, Kenneth Eugene Smith is set to die as soon as Thursday via nitrogen hypoxia, in which a person breathes only nitrogen and dies from a lack of oxygen.
The majority ruling from the 11th Circuit U.S. Court of Appeals, which was not unanimous, concurs with another decision this month by a federal judge in Alabama that sided with the Alabama Department of Corrections in its attempt to use nitrogen gas on Smith.
Attorneys for Smith could not immediately be reached for comment.
With the case ping-ponging between various courts, Smith’s lawyers had also petitioned the U.S. Supreme Court to review his case this month. The justices on Wednesday rejected his request for a stay of execution, although the case could come before them again in the final hours based on other legal challenges.
Smith, 58, is facing execution for his role in the 1988 murder-for-hire slaying of a preacher’s wife in Alabama’s Colbert County.
Alabama approved the use of nitrogen hypoxia for executions in 2018, as the primary method of lethal injection has become increasingly difficult due to a shortage of the necessary drugs.
Smith was set to die by lethal injection in November 2022, but the execution had to be called off when prison staff was unable to find a suitable vein. That, in addition to other problems related to the use of lethal injection on inmates in Alabama, led the state to temporarily pause all executions.
Alabama jump-started its executions last summer, but sought to put Smith to death by the alternative, nitrogen hypoxia, given the difficulties experienced with the lethal injection.
During an appeals court hearing on Friday, Circuit Court Judges Britt Grant, Jill Pryor and Charles Wilson…
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