Alabama Supreme Court rules state can use nitrogen gas for inmate execution

The Alabama Supreme Court ruled Wednesday the state can execute an inmate with nitrogen gas, a method not yet used to carry out a death sentence.

The 6-2 decision by the all-Republican court came in response to the state attorney general’s request for an execution of Kenneth Eugene Smith.

The order did not specify an execution method, but the Alabama attorney general indicated in filings with the court that it intended to use nitrogen gas to kill Smith, The Associated Press reported. An execution date has not yet been announced.

The decision inches Alabama closer to being the first state to attempt an execution with nitrogen gas. Oklahoma and Mississippi also have authorized nitrogen hypoxia as an execution method, but no state has attempted to use it.

With a nitrogen execution, the inmate would be deprived of the oxygen needed to maintain bodily functions. Nitrogen makes up 78 percent of the air inhaled by humans and is harmless when inhaled with oxygen.

Proponents of the new method say the execution is painless, but others say it is effectively human experimentation.

Smith was one of two men convicted in the 1988 murder-for-hire killing of Elizabeth Sennett in Alabama’s Colbert County.

“Elizabeth Sennett’s family has waited an unconscionable 35 years to see justice served,” Alabama Attorney General Steve Marshall wrote. “Today, the Alabama Supreme Court cleared the way for Kenneth Eugene Smith to be executed by nitrogen hypoxia.”

Smith’s lawyers had urged the court to reject the execution request.

The American Civil Liberties Union of Alabama released a statement Wednesday calling for the Gov. Kay Ivey (R) and Attorney General Steve Marshall (R) to call off the execution. 

“As Alabama races to experiment on incarcerated people with nitrogen gas, they put the lives of correctional staff, spiritual advisers, the media, and victims at risk by potentially exposing them to an odorless and lethal gas,” Alison Mollman, ALCU Alabama interim legal director said in the statement. 

Alabama paused its executions last year following reports of botched executions by lethal injection. The ACLU noted the pause and said state leadership failed to conduct an independent review after the botched executions before restarting them. 

The state is rushing to kill Smith at the direction of Marshall, Mollman said, using an “untested, unproven, and never-before-used method of execution.”

The U.S. Supreme Court previously sided with Smith in May when he challenged the state’s decision to execute him via lethal injection. The Supreme Court declined to review a lower court’s ruling that affirmed Smith’s right to die by lethal gas rather than injection.

At the time, the state noted Alabama’s Legislature approved the use of nitrogen gas for executions but had not yet finalized all protocols for its application.

The Associated Press contributed.