The Supreme Court on Wednesday refused to stay the execution of an Alabama inmate by nitrogen hypoxia, an untested method that experts have warned could cause him extreme pain and suffering.
Should a separate appeal still pending in federal court not pan out the way advocates and his legal team hope, Kenneth Eugene Smith will be the first person in the United States to be lethally suffocated by nitrogen gas on Thursday evening.
A terse court order noted that both Smith’s application for a stay and his petition for a writ of certiorari—a request for the high court to take up his case—had been denied. No justices publicly dissented from the order.
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Smith has been on death row for more than a quarter-century for the 1988 murder-for-hire killing of preacher’s wife Elizabeth Dorlene Sennett. In 2022, he survived an attempt by the state to execute him by lethal injection. After officials spent hours jabbing at him with needles, probing for a vein they could use to put him to death, the execution was called off before the death warrant could expire at midnight.
“They were just sticking me over and over, going in the same hole like a freaking sewing machine,” Smith told NPR recently. “I was absolutely alone in a room full of people, and not one of them tried to help me at all—and I was crying out for help.”
The use of nitrogen gas in Alabama’s death chamber has prompted an outcry from advocates and experts around the world, including the United Nations, which issued a statement earlier this month expressing “alarm” that the method would likely violate its convention against torture and other cruel, inhuman, or degrading punishment.
“We are concerned that nitrogen hypoxia would result in a painful and humiliating death,” a panel of four U.N. experts wrote.
Others have challenged Alabama’s decision to shroud its preparations in secrecy, redacting key sections of its published protocol. “There’s no precedent for it,” Robin Maher, executive director of the Death Penalty Information Center, told CNN this week. “There’s no testing of this procedure. No one knows how it’s going to occur.”
Smith, who has said in interviews that he is “absolutely terrified” of his upcoming execution date, has argued that the use of nitrogen gas is a violation of his constitutional rights under the 8th Amendment. His lawyers have also said that the previous execution attempt, which left Smith suffering from post-traumatic stress disorder and depression, raises questions about its ability to execute him this week.
But Alabama Attorney General Steve Marshall pointed out in recent court filings that Smith had requested after the lethal injection debacle that, should the state try again, he be executed by gas. “Such allegations cannot fairly be the basis for relief now—after Smith litigated successfully for the method of execution he will receive,” he wrote, according to NBC News.
A federal judge, concurring with Marshall, swept aside Smith’s arguments in a ruling last week that denied him a request for an injunction.
Another issue is the question of nitrogen gas escaping the mask that will be fitted over Smith’s face in the chamber, posing a potential threat to the others who will be in the room. NPR reported last month that Smith’s spiritual advisor, the Rev. Dr. Jeff Hood, has been made to sign a waiver acknowledging that he could be exposed to the invisible and odorless gas during the execution.
“It’s so telling that they just have no idea, and that they’re going to try to kill him in a way that could kill other people, too,” Dr. Joel Zivot, an anesthesiologist and associate professor at Emory University School of Medicine, said to NPR. “They’re not being realistic about what exactly is at stake here.”
