An attorney for an Alabama inmate, Kenneth Smith, who is scheduled to be executed using nitrogen gas, has asked a federal appeals court to block the upcoming execution due to the use of “untested methods.” Smith, 58, is set to be the first person ever put to death by nitrogen gas in the nation. The execution method involves replacing his breathing air with pure nitrogen, depriving him of the oxygen needed to stay alive. While three states have authorized nitrogen hypoxia as an execution method, no state has previously attempted to use it.
The 11th U.S. Circuit Court of Appeals heard arguments regarding the humaneness and potential risks of the proposed method. Smith’s attorney argued 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. He emphasized that this is the first time such a method will be attempted, with no data on its potential outcomes.
The use of nitrogen gas as an execution method has gained attention as some states search for alternatives to lethal injections, which have become increasingly difficult to carry out due to a lack of available drugs. 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 introduced in 1982.
The Alabama attorney general’s office defended the execution method, stating that it is the most painless and humane option available. The court also noted that Smith had previously suggested nitrogen as an alternative method when fighting past attempts to execute him by lethal injection.
However, Smith’s attorney raised concerns about the risks associated with using a mask to deliver the nitrogen gas. He argued that there is a possibility of oxygen leaking in, potentially leading to a prolonged execution or leaving Smith in a vegetative state. There is also a concern that Smith could choke to death on his own vomit. The state maintained that these scenarios are unlikely to occur.
In response to questions from the court about what would happen if Smith vomited during the execution, the state indicated that they would not halt the execution if the nitrogen gas had already begun flowing. The state argued that Smith would not feel pain since the nitrogen would render him unconscious almost instantaneously.
Smith was convicted in a 1988 murder-for-hire case and is slated to be the first American inmate ever executed by nitrogen hypoxia. His attorney also raised concerns about the violation of his due process rights, as his execution is scheduled ahead of other inmates who have requested nitrogen as their preferred execution method and while he still has ongoing appeals.
Smith has asked the U.S. Supreme Court to stay the execution to consider the question of whether it would violate the federal ban on cruel and unusual punishment to make a second attempt to execute him after surviving one execution attempt.
The case has sparked controversy and raised questions about the use of nitrogen gas as an execution method, with critics arguing that its potential risks and lack of data make it an untested and potentially inhumane method of capital punishment. The court’s ruling on Smith’s appeal will determine the fate of his execution and could have broader implications for the use of nitrogen gas in future executions.
