Kenneth Eugene Smith is set to be executed by nitrogen hypoxia on Thursday or Friday, officials said. He is due to die by a method in which the inmate is forced to breathe pure nitrogen while being deprived of oxygen.
On Wednesday, the Supreme Court denied Smith's last-minute request for it to block his upcoming execution by nitrogen gas. Later in the day, the 11th U.S. Circuit Court of Appeals determined the state can go through with his scheduled execution.
In a 11th Circuit Court of Appeals hearing, Smith's attorney Robert Grass said, "Mr. Smith's executions by nitrogen hypoxia would constitute cruel and unusual punishment."
If the execution is carried out, Smith will be the first person in U.S. history to be put to death in this manner.
In court documents, Smith's attorney says there is a "substantial risk of a persistent vegetative state, stroke or suffocation."
The state of Alabama disagrees. In that same 11th Circuit Court of Appeals hearing, Alabama Solicitor General, Edmund G. Lacour Jr. said, "Alabama's adopted the most painless and humane method of execution known to man."
The state says the method has been used in dozens of suicides and Kenneth Smith has even requested its use in the past as an alternative to lethal injection.
Alabama is one of three states, along with Oklahoma and Mississippi, that has authorized the use of nitrogen gas to execute prisoners.
Five states — Idaho, Mississippi, Utah, Oklahoma and South Carolina — have re-introduced firing squads as an authorized method of execution.
Smith is one of two men convicted in the 1988 murder of Elizabeth Sennett, who was found stabbed to death in her home.
Prosecutors said Smith and another man were paid $1,000 to kill the preacher's wife on behalf of her husband, who was deeply in debt and wanted to collect on the insurance. The preacher killed himself when investigators introduced him as a suspect, and the other convicted murder-for-hire killer was executed in 2010.
Smith's first execution attempt took place in 2022, but it was called off before the lethal injection drugs were administered after authorities were unable to connect the two required intravenous lines to his veins. His lawyers said he was strapped to a gurney for nearly four hours during that attempt, and they argued his survival then meant the state's second execution was a violation of the constitutional cruel and unusual punishment ban.
In the two years since, drug makers have refused to provide drugs to conduct legal injections to states, forcing states to find other methods of execution.
Additional reporting by The Associated Press.
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