Alabama can proceed with the first nitrogen gas execution in the United States, according to appeals court rules
Alabama can move forward with its plan to hold the former Implementation in the United States with nitrogen gas After a federal appeals court was not convinced on Wednesday that the method violated the constitutional ban on cruel and unusual punishment.
Barring any last-minute intervention by the court or state, Kenneth Eugene Smith is scheduled to die Thursday of nitrogen HypoxiaThe person breathes only nitrogen and dies due to lack of oxygen.
the Majority puling from 11 we Circuit Court of Appeals Agree with another A decision this month by a federal judge in Alabama Which sided with the state Department of Corrections in its attempt to use nitrogen gas to execute Smith.
“There is no doubt that death by nitrogen hypoxia is new and new,” 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 innovative method, would amount to cruel and unusual punishment in violation of the Eighth Amendment per se.”
In a dissenting opinion, Circuit Judge Jill Pryor said she was concerned about what might happen to Smith in the execution chamber under an untested method.
“I fear the cost will be to Mr. Smith’s human dignity and ours,” she wrote.
Smith’s attorney could not immediately be reached for comment.
As the case bounced between different courts, so did Smith’s lawyers theSo File a petition for US Supreme Court To review his case this month. the The justices refused Wednesday He requested a stay of execution, although the case could come before them again in the final hours based on further legal challenges.
Smith, 58, faces the death penalty for his role in the 1988 murder of a preacher’s wife in Colbert County, Alabama.
The state of Alabama approved the use of nitrous hypoxia in executions in 2018, as the basic method of lethal injection became increasingly difficult due to shortages of the necessary drugs.
Smith was scheduled to die by lethal injection in November 2022, but the execution was canceled when prison staff were arrested. Unable to find a suitable vein. This is in addition to other problems related to use Lethal injection of prisoners in Alabamaled the state to temporarily Pause all executions.
At an appeals court hearing on Friday, circuit court judges heard arguments from Smith’s defense team suggesting that the unusual method of nitrogen hypoxia deserves more scrutiny. Circuit Court Judge Charles Wilson noted that it was Smith who initially agreed to accept nitrogen hypoxia rather than lethal injection, even though that was at a time when the state’s protocol had not been developed.
Smith’s attorney, Robert Grass, countered that it’s not the method itself that’s concerning, but rather the unknowns surrounding the Alabama protocol.
Nitrogen is a gas naturally available in the Earth’s atmosphere, but if it is not mixed with the right amount of oxygen, inhaling it can lead to harmful physiological effects, such as abnormal fatigue, weak breathing, vomiting and even death, medical experts say.
The state says it will use a mask strapped to Smith’s face to feed only nitrogen gas while he is strapped to a gurney in the execution chamber. But the outline of the procedure also includes heavily revised paragraphs related to how to calibrate oxygen monitoring equipment, how to operate the nitrogen hypoxia system, including various safety requirements, and shut down the system.
Medical experts say a small amount of oxygen entering the mask when Smith breathes in nitrogen could lengthen the time it takes for him to die, amounting to slow suffocation.
Smith’s legal team argued that any error in how the mask delivered the nitrogen could expose him to “severe pain.” They worry about the risk of vomiting, choking, feeling suffocated, or possibly being left in a vegetative state.
A flurry of legal briefs on Wednesday sought to persuade the appeals court to either halt the execution or continue it. Smith’s lawyers wrote that they expressed concern that he was “vomiting frequently,” a “possible consequence” of the post-traumatic stress disorder he has suffered since the previous execution failed two years ago.
But the state filing refuted Smith’s vomiting allegation as unsubstantiated, and as a precaution, it said he would be given his last meal in the morning and only be allowed clear liquids during the day to limit the risk of choking when that happens. Execution.
State Attorney General Steve Marshall said in a statement this month that the concerns raised by Smith are “speculative.”
Prosecutors said Smith was 22 years old when the Rev. Charles Sinnett and two other people hired him for $1,000 each to kill his wife, Elizabeth, so he could collect her life insurance. Elizabeth Sennett, 45, was stabbed and beaten to death in her home.
One of her adult sons, Michael Sennett, He said in an interview Last month he finally wanted justice for his mother.
“I don’t care how he gets out, as long as he gets out,” Sinnett said of Smith.
This article was originally published on NBCNews.com