Ethermac Exchange-Judge rules Alabama can move forward, become first state to perform nitrogen gas execution

Alabama is Ethermac Exchangeon track to become the first state to execute an inmate with nitrogen gas later this month after a federal judge denied a request Wednesday to stop the procedure, which a top international human rights group called "alarming" and "inhuman."

U.S. District Judge R. Austin Huffaker granted the state permission to execute Kenneth Eugene Smith with the new method. The state plans to put a respirator-type face mask over his nose and mouth to replace breathable air with nitrogen, causing him to die from lack of oxygen.

Smith, 58, previously survived a previous execution attempt by lethal injection in 2022, but the Alabama Department of Corrections stopped it when authorities couldn’t connect two intravenous lines. He would be the first inmate to die by nitrogen gas in the nation if the state moves forward.

Three states — Alabama, Mississippi, and Oklahoma — have authorized nitrogen hypoxia as an execution method but none have used it so far.

Alabama Gov. Kay Ivey announced a Jan. 25 execution date for Smith using nitrogen hypoxia. Huffaker said there are theoretical risks of pain and suffering under Alabama’s execution protocol but those risks don't rise to an unconstitutional violation.

"Smith is not guaranteed a painless death," he said.

Smith’s attorney, Robert Grass, said he will appeal the decision but declined further comment. The question of whether the execution can ultimately proceed could end up before the U.S. Supreme Court.

Nitrogen hypoxia as an execution method

Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with proper levels of oxygen. The only description the Alabama Department of Corrections has given of the process is in a heavily redacted court document.

Under the proposed procedures, a mask would be placed over the inmate’s nose and mouth and their breathing air would be replaced with nitrogen, depriving them of the oxygen needed to stay alive. The nitrogen “will be administered for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer,” according to the execution protocol.

The state's Department of Corrections has not commented on whether condemned inmates using the nitrogen gas system would be sedated before the gas is administered.

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1988 murder of Elizabeth Sennett

Smith was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in northwestern Alabama. Prosecutors say Smith was one of two men who were each paid $1,000 to kill Sennett on behalf of her pastor husband, who was deeply in debt and wanted to collect on insurance.

Her husband died by suicide a week later. The other man convicted in the slaying, John Forrest Parker, 42, was executed by lethal injection in June 2010.

Alabama Attorney General Steve Marshall said Huffaker's decision moves the state closer to “holding Kenneth Smith accountable for the heinous murder-for-hire slaying.

“Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done,” he said in a statement.

But Smith’s spiritual adviser Rev. Dr. Jeff Hood, who plans to be with Smith during the execution, was dismayed by the judge's decision. "Horror is an understatement. The State of Alabama now has the permission of a federal court to suffocate its citizens," Hood said.

Failed execution attempts in Alabama

Earlier this month, experts appointed by the United Nations expressed concern over the prospect of the first-ever execution by nitrogen hypoxia in the U.S., claiming it "would result in a painful and humiliating death" and "violate the prohibition on torture and other cruel, inhuman or degrading punishment."

In 2022, two attempts at execution in Alabama were canceled when access to the veins of two condemned inmates could not be accessed before the death warrant ran out. Another execution was delayed several hours as the execution team worked to access the condemned man's veins.

In the wake of those problems, Ivey put a halt on executions and called for a "top to bottom review" of the process. Protocol changes included the governor’s office giving additional time for the execution to be conducted, 30 hours in place of the more traditional 24 hours, and called for a new execution team to be formed.

The Alabama Department of Corrections has been tightlipped about the makeup of the team and even what compounds are used in executions. The new protocols were tested in July with the execution of James Barber, 64, by lethal injection.

In that execution, the team took three "sticks" to access two veins over a period of about six minutes, according to John Q. Hamm, director of the state's Department of Corrections.

Contributing: Krystal Nurse, USA TODAY; The Associated Press

Contact Kayla Jimenez at [email protected]. Follow her on X, formerly Twitter, at @kaylajjimenez.