A death row inmate in Alabama is set to be executed using nitrogen gas, making him the first person in the US to undergo this method. His last-minute appeals have been unsuccessful.
The US Supreme Court and a lower appeals court have refused to prevent what Kenneth Eugene Smith’s lawyers have described as a “cruel and unusual” punishment.
Critics argue that the use of nitrogen may lead to avoidable distress, and the potential for a leak could pose a risk to individuals in the vicinity.
Smith, 58, was found guilty in 1989 of the murder of Elizabeth Sennett.
Alabama has a limited timeframe to complete the execution process, which entails administering nitrogen gas through a mask, starting on Thursday at 0600 GMT (0100 ET).
The inmate’s lawyers, who have been fighting for his case since 1996, informed the BBC on Wednesday night that they are submitting another appeal to the nation’s highest court in a final attempt to secure a reprieve.
Inhaling pure nitrogen without any oxygen can be extremely dangerous and even fatal, as it can cause cellular breakdown. According to a court filing, Alabama anticipates a rapid loss of consciousness and a subsequent passing within minutes.
However, there are concerns among certain medical professionals regarding its use, as they caution about potential risks such as severe convulsions or long-term vegetative states.
Alabama and two other US states have recently given the green light to the use of nitrogen hypoxia as an alternative method of execution. This decision comes as a result of the increasing challenges in obtaining the drugs required for lethal injections.
Alabama attempted to carry out Smith’s execution through lethal injection in the past, but encountered difficulties in finding a vein before the state’s death warrant expired.
Smith’s execution would mark a significant milestone, being the first of its kind in the United States and, as reported by the Death Penalty Information Centre, a unique occurrence worldwide.
Smith and another man were found guilty of the murder of 45-year-old Sennett in a killing-for-hire that took place in March 1988.
She suffered a brutal attack with a fireplace implement and was fatally stabbed in the chest and neck. The incident was made to appear as a home invasion and burglary.
Her husband, a financially troubled preacher, had masterminded the plan to obtain insurance funds. Tragically, he took his own life as investigators were closing in.
In 2010, John Forrest Parker, a fellow hitman of Smith, met his demise.
At his trial Smith admitted to being present when the victim was killed, but said he did not take part in the attack.
The UN’s High Commissioner for Human Rights has said gassing Smith could amount to torture or other cruel, inhuman or degrading treatment, and called for a halt.
Smith’s lawyers lodged a challenge with the Supreme Court, arguing that putting convicts through multiple execution attempts violates the Eighth Amendment of the US Constitution, which protects against “cruel and unusual” punishment.
On Wednesday, the justices declined to hear the appeal and denied his request to halt the execution. No justice publicly dissented from the ruling.
Smith also made a separate legal challenge to the lower 11th US Circuit Court of Appeals, where he contested the legality of Alabama’s nitrogen gas protocol.
But that court also rejected the inmate’s request for an injunction in a ruling on Wednesday evening.
Smith’s lawyers said they would again appeal to the Supreme Court.
His legal team argue the nitrogen gas method is “recently released and untested”, leaving him at risk of choking on his own vomit.
State Attorney General Steve Marshall previously called it “perhaps the most humane method of execution ever devised”.
Smith’s spiritual adviser, Reverend Jeff Hood, will be present in the room when the execution happens. He believes he will be in danger if the nitrogen leaks but says he would rather risk his life than forsake his calling.
Alabama has one of the highest per capita execution rates in the US and has 165 people currently on death row.
Since 2018, the state has been responsible for three botched attempts at lethal injection in which the condemned inmates survived.
The failures led to an internal review that largely placed blame on the prisoners themselves.
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