Federal Court Says Alabama Can Carry Out First Nitrogen Gas Execution

Attorneys for Kenneth Eugene Smith are expected to appeal to the U.S. Supreme Court in a final bid to halt the scheduled execution.

MONTGOMERY, Ala. (AP) — Alabama will be allowed to put an inmate to death with nitrogen gas, a federal appeals court ruled Wednesday, refusing to block what would be the nation’s first execution by a new method since 1982.

A divided panel of the 11th U.S. Circuit Court of Appeals rejected Kenneth Eugene Smith’s request for an injunction to stop his execution by nitrogen hypoxia Thursday night. Smith’s lawyers, who have argued the state is trying to make him the test subject for an experimental execution method, are expected to appeal to the U.S. Supreme Court in a final bid to halt the scheduled execution.

The judges said in a 2-1 decision there is “no doubt that death by nitrogen hypoxia is both new and novel” but that Smith had failed to establish how it would violate the constitutional ban on cruel and unusual punishment. Circuit Judge Jill A. Pryor dissented from the decision, saying there are, “real doubts” 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 dissent.

Robert Grass, an attorney for Smith, declined to comment Wednesday night.