WASHINGTON — The Supreme Court has refused an Alabama death row inmate’s last-minute request for a stay of execution, bringing him closer to being put to death by the untested method of nitrogen gas.
Kenneth Smith, who was sentenced to death for the murder of Elizabeth Sennett in 1988, raised objections to being executed through nitrogen hypoxia due to concerns that the state could mishandle the procedure. He argued that this method would violate his Eighth Amendment right to be free from cruel and unusual punishment. Smith’s execution is scheduled for Thursday.
The Supreme Court’s decision was a brief order denying Smith’s application without any public dissent from the justices. However, Smith still has a separate claim pending in federal court that could potentially halt the execution.
Alabama Attorney General Steve Marshall expressed confidence that the execution would proceed as planned. Smith’s lawyers declined to comment on the Supreme Court’s decision.
According to court documents, nitrogen hypoxia has never been used for executions in the United States. The last time lethal gas was used was in 1999. In May of last year, the Supreme Court rejected a previous attempt to carry out Smith’s execution by lethal injection.
Smith’s lawyers argued that the failed attempt to execute him in November 2022, which was called off after struggling to insert an intravenous line, raises doubts about Alabama’s ability to effectively use the new method. They claimed that a new attempt would constitute torture and be “only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt.”
Nitrogen hypoxia entails the inmate breathing in pure nitrogen, which deprives them of oxygen and causes death. According to Alabama’s execution protocol, a mask would be placed on the inmate’s face, and nitrogen gas would be administered until death.
Oklahoma and Mississippi are the only other states that have approved the use of nitrogen hypoxia. While lethal injection is the most common method of execution in the United States, some states have faced challenges in obtaining the necessary drugs.
Smith’s lawyers and opponents of the death penalty voiced concerns about the risks associated with nitrogen hypoxia. These include the possibility of Smith being left in a vegetative state or choking on his own vomit. There are also concerns about potential danger to others in the execution chamber in the event of a gas leak.
The Supreme Court, which has a 6-3 conservative majority, typically views last-minute stay requests from death row inmates with skepticism. The court has also made it harder for prisoners to challenge the method of execution. In 2019, the court ruled against a convicted murderer in Missouri seeking to die by lethal gas instead of lethal injection, stating that prisoners are not guaranteed a painless death.
Critics of death penalty lawyers making last-minute claims argue that they are attempting to delay executions. Justice Samuel Alito referred to this as “a guerrilla war against the death penalty” during an oral argument in a 2015 case.
The Supreme Court’s decision not to grant a stay of execution to Kenneth Smith has intensified the debate surrounding the use of nitrogen gas as a method of capital punishment.
(Note: This article was written in AP News Style and does not include any direct quotes or mention of specific news organizations.)