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.
“There is no doubt that death by nitrogen hypoxia is both new and novel,” the majority wrote in its opinion. “Because we are bound by Supreme Court precedent, Smith cannot say that the use of nitrogen hypoxia, as a new and novel method, will amount to cruel and unusual punishment in violation of the Eighth Amendment by itself.”
But in her dissenting opinion, Circuit Court Judge Jill Pryor said that she is worried about what might happen to Smith in the death chamber under an untested method.
“The cost, I fear, will be Mr. Smith’s human dignity, and ours,” she wrote.
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, the circuit court judges listened to arguments by Smith’s defense team suggesting the unusual method of nitrogen hypoxia deserves additional scrutiny. Wilson pointed out it was Smith who initially agreed to accept nitrogen hypoxia over lethal injection, although it was at a time when the state’s protocol had not been developed.
Smith’s attorney, Robert Grass, responded that it’s not the method itself they find troubling, but the unknowns surrounding Alabama’s protocol.
Nitrogen is a naturally abundant gas in the earth’s atmosphere, but if not mixed with an appropriate amount of oxygen, breathing it in can lead to adverse physiological effects, such as abnormal fatigue, impaired respiration, vomiting and even death, medical experts say.
The state says it would use a mask attached to Smith’s face to feed only nitrogen gas while he’s strapped to a gurney in the death chamber. But the outline of the procedure also includes heavily redacted passages related to how the oxygen-monitoring equipment is calibrated, how the nitrogen hypoxia system is operated, including various safety requirements, and the shutdown of the system.
Medical experts say even a small amount of oxygen getting into the mask when Smith is breathing nitrogen could prolong the time it takes from him to die and amount to slow asphyxiation.
Smith’s legal team has argued that any fault with how the mask delivers nitrogen could subject him to “superadded pain.” They worry about the risk that he could vomit and choke, experience the sensation of feeling suffocated or potentially be left in a vegetative state.
A flurry of legal filings Wednesday sought to convice the appeals court to either halt or continue the execution. Smith’s lawyers expressed concern that he had already been “vomiting repeatedly,” a “likely result” of the post-traumatic stress disorder he has suffered following the previous failed execution two years ago, they wrote.
But the state’s filing discredited the claim of Smith’s vomiting as uncorroborated, and as a precaution, said he would be given his final meal in the morning and only be allowed clear liquids through the day to limit the risk of choking at the time of the execution.
State Attorney General Steve Marshall said in a prior statement this month that the concerns raised by Smith are “speculative.”
Smith was 22 when a pastor, Charles Sennett, hired him and two others for $1,000 each to kill his wife, Elizabeth, so he could collect on her life insurance, prosecutors said. Elizabeth Sennett, 45, was stabbed and beaten to death in her home.
One of her adult sons, Michael Sennett, told NBC News last month that in the end, he simply wants justice for his mother.
“It doesn’t matter to me how he goes out,” Sennett said of Smith, “so long as he goes.”
Source: | This article originally belongs to Nbcnews.com
