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Alabama Inmate Smith is First Executed by Nitrogen Gas

The state of Alabama executed Kenneth Eugene Smith, 58, for the 1988 murder-for-hire of Elizabeth Sennett. The execution was the first ever carried out with nitrogen gas. According to the Alabama Reflector, Smith convulsed for two minutes, with seven minutes of heavy breathing as he took large breaths. “We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for his life. We saw minutes of someone heaving back and forth. We saw spit. We saw all sorts of stuff develop from his mask," said Rev. Jeff Hood, Smith’s spiritual adviser. The U.S. Supreme Court rejected appeals from Smith that argued the method violated his Eighth Amendment protections against cruel and unusual punishment. The court’s three liberal justices dissented, noting the failed execution attempt of Smith in November 2022. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” Justice Sonia Sotomayor wrote.  “The world is watching.”

Attorneys for Smith challenged the execution protocol. Smith’s lawyers argued that the mask itself might not fit tightly on his face and so would allow oxygen to creep in, which could prolong his death and cause him to vomit. His attorneys also argued that the state had unconstitutionally moved Smith’s execution ahead of others on death row who had chosen to die by nitrogen hypoxia and who had exhausted their appeals. Attorneys for the Alabama attorney general’s office countered that the state had taken precautions to ensure Smith would be exposed to pure nitrogen and that harms were theoretical. Federal courts sided with the state. U.S. District Judge R. Austin Huffaker Jr. ruled on Jan. 10 that Smith had not provided a sufficient reason to stop the execution, calling the allegations and evidence “speculation.” A divided three-judge panel of the U.S. 11th Circuit Court of Appeals upheld Huffaker’s ruling on Wednesday. “There is no doubt that death by nitrogen hypoxia is both new and novel,” the unsigned opinion said. “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.”


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