MONTGOMERY.- Alabama may execute an inmate with nitrogen gas, a federal appeals court ruled Wednesday, refusing to block what would be the country’s first execution using a new method since 1982.
In its split decision, the 11th U.S. Circuit Court of Appeals on Thursday night rejected Kenneth Eugene Smith’s request for an injunction to stop his execution for nitrogen hypoxia. Smith’s lawyers have argued that the state is trying to make him a test subject for an experimental execution method, and they are scheduled to appeal to the U.S. Supreme Court in a last-ditch effort to stop the execution.
The justices said in their 2-1 decision that “there is no doubt that death by nitrogen hypoxia is new and novel,” but that Smith had not shown that it is a violation of the constitutional ban on cruel and unusual punishment. In her dissent, Circuit Judge Jill A. Pryor said there are “real questions” about the protocol and what Smith will experience.
“He will die. The cost, I fear, will be Mr. Smith’s human dignity, and ours,” Pryor wrote in a dissenting statement.
Robert Grass, Smith’s attorney, declined to comment Wednesday night.
Smith, 58, is one of two men convicted of the 1988 murder-for-hire of a preacher’s wife, a crime that shocked a small north Alabama community.. According to the indictment, Smith and the other man received $1,000 each to kill Elizabeth Sennett on behalf of her husband, who was mired in debt and wanted to collect on the insurance.
Alabama Attorney General Steve Marshall praised the decision to allow the execution to proceed.
“That’s two courts that have rejected Smith’s arguments,” Marshall said. “I remain confident that the Supreme Court will rule on the side of justice, and that Smith’s execution will take place tomorrow.”
The new method of execution involves placing a respirator-like mask over the nose and mouth to replace breathable air with nitrogen, causing death from lack of oxygen. The state predicted in court filings that the gas will cause an inmate to lose consciousness within seconds and cause death within minutes.
Critics of this untested method say the state cannot predict what will happen and what Smith will feel after the guard turns on the gas. His lawyers say he is at risk of prolonged suffering and drowning in his own vomit.
Source: With information from AP
