(CN) — An Alabama death row inmate who is six days away from becoming the first person in the nation to be executed using a method known as nitrogen hypoxia argued his case to the 11th Circuit Court of Appeals Friday, hoping to overturn a Jan. 10 district court order greenlighting the procedure.
On behalf of Kenneth Eugene Smith, who was convicted in 1996 for a 1988 murder, attorney Robert Grass argued the district court “committed legal error” in dismissing Smith’s equal protection claim, while it “abused its discretion” by denying Smith’s relief from cruel and unusual punishment.
The 14th Amendment should protect Smith from execution while his appeals are pending, Grass offered, while the state argued Smith’s appeals have already been exhausted. The flurry of petitions he has filed since his execution date was set in November are not appeals, but rather successive petitions that amount to a “legal runaround,” according to Alabama Solicitor General Edmond LaCour, who added Smith is simply attempting to delay the inevitable.
Separately, attorneys argued over whether the execution would violate Smith’s Eighth Amendment protections.
Grass noted 20 other death row inmates in the state have exhausted their appeals, yet Smith was moved to the front of the line. He suggested state officials did so to prevent Smith’s litigation from subjecting potential discovery to public scrutiny.
Smith was convicted in 1996 in the 1988 stabbing death of Elizabeth Dorlene Sennett. Smith was hired by Sennett’s husband to commit the murder, as the husband was in debt and wanted Sennett’s life insurance benefits. Although a jury recommended a life sentence for Smith by a vote of 11-1, the trial judge handed down the death penalty in a practice known as judicial override, which has since been outlawed in the state.
Notably, this is the state’s second attempt at executing Smith after his lethal injection execution was halted in November 2022, when officials tried and failed to find a feasible vein for more than four hours.
Subsequently, Smith notified the Alabama Department of Corrections he preferred to be executed using the untested nitrogen hypoxia method. Theoretically, a respirator-type mask will be placed over Smith’s nose and mouth as he is administered 100% nitrogen. According to expert witnesses who testified on behalf of the state, the method would render a subject unconscious within 40 seconds, while death is expected in under 15 minutes.
Nitrogen hypoxia has been used successfully for assisted suicides, but never for executions, Grass said Friday. He said the state has not alleviated concerns the mask may leak or that the execution may be interrupted by Smith’s physical response, which could leave him in a persistent vegetative state.
The three-judge panel that heard the appeal spent a significant portion of the hearing asking about the function of the mask itself, and questioning whether a hood or closed-room environment may be more effective. If Smith vomits during the procedure, Grass noted, it may interfere with the administration of lethal gas, causing Smith to suffer needlessly.
U.S. Circuit Judge Charles R. Wilson, a Bill Clinton appointee, asked LaCour whether the state would proceed with the execution if Smith did indeed vomit during the procedure. LaCour said the state’s protocol is to briefly remove the mask if the airway is obstructed, then replace it until the time of administration has expired.
The state’s protocol for the method, which was compiled solely for Smith’s execution, has been heavily redacted in the court record and unavailable for public review. But portions that have been released suggest the nitrogen will be administered for a maximum of 15 minutes, a process LaCour said would not be interrupted, even if Smith vomits or struggles during the procedure.
LaCour called the procedure “the most painless humane method of execution known to man,” noting Smith himself advocated for its use, while expert witnesses including Dr. Philip Nitschke — who has testified the procedure is neither cruel nor unusual, and has also made public claims it is safe and effective.
In a bit of a peek behind the curtain, LaCour reluctantly disclosed a previously redacted portion of the protocol: that Smith would receive between 70 and 90 liters of nitrogen per minute. That rate is far more than the typical rate of 15 liters per minute that is administered in assisted suicides, he added.
“Thirty-five years have passed and it’s time to give [Smith] the sentence he has asked for and earned,” LaCour concluded.
The three-judge panel also included U.S. Circuit Judge Jill A. Pryor, an Barack Obama appointee, and U.S. Circuit Judge Britt C. Grant, a Donald Trump appointee.
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