Alabama can use nitrogen in execution, state's top court rules

Montgomery, Ala. — A divided Alabama Supreme Court on Wednesday said the state can execute an inmate with nitrogen gas, a method that hasn't been used carry out a death sentence.

The all-Republican court in a 6-2 decision granted the state attorney general's request for an execution warrant for Kenneth Eugene Smith. The order did not specify the execution method, but the Alabama attorney general indicated in filings with the court that it intends to use nitrogen to put Smith to death. The exact date of the execution will be set later by Alabama Gov. Kay Ivey.

The decision moves Alabama closer to being the first state to attempt an execution with nitrogen gas, although there's likely to be additional litigation over the proposed new execution method. Three states - Alabama, Oklahoma and Mississippi - have authorized nitrogen hypoxia as an execution method but no state has attempted to use it.