Convicted murderer Kenneth Smith. Photo: AFP photo / Alabama Department of Corrections

Supreme Court declines to halt first US nitrogen-gas execution in Alabama case

By Andrew Chung, Reuters |

The US Supreme Court on Wednesday declined to halt Alabama from proceeding with the nation’s first execution using nitrogen gas to carry out the death penalty on convicted murderer Kenneth Smith, who survived a botched lethal injection in 2022 that helped prompt a review of the state’s death penalty procedures.

The justices denied Smith’s request to stay his execution, which is scheduled for Thursday (local time), and declined to hear his legal challenge contending that a second execution attempt by Alabama – after the first failed attempt caused him severe trauma – would violate the US Constitution’s Eighth Amendment protections against cruel and unusual punishment.

No justice publicly dissented from the decision.

Alabama’s gassing method – called nitrogen hypoxia – was designed to deprive Smith of oxygen by placing a mask connected to a cylinder of nitrogen over his face.

A majority of the justices in 2022 cleared the way for the first attempted execution of Smith, who was sentenced to death for his role in a 1988 murder-for-hire plot. The nine-member Supreme Court’s three liberal justices dissented from that previous decision.

Smith’s botched execution was the third consecutive instance in which Alabama officials encountered problems or delays inserting intravenous lines for a scheduled lethal injection, with two of the executions, including Smith’s, eventually called off, according to court filings.

The problems prompted Alabama Governor Kay Ivey, a Republican, to announce a review of the state’s execution procedures. Officials completed the review a few months later, saying they obtained new equipment and would add to the pool of available medical personnel for executions.

Smith, 58, in May 2023 challenged Alabama’s plan for a second execution attempt, asserting in state court that it would violate the Eighth Amendment after the first attempt, according to his lawyers, caused him severe physical and psychological pain, including post-traumatic stress disorder.

State officials during that first execution attempt repeatedly tried but failed to place the necessary intravenous lines or a central line in his collarbone area before calling off the execution after 11pm. Smith’s lawyers have characterised the experience as torture and said that it “exposed him to the severe mental anguish of a mock execution”.

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