On Wednesday, the Supreme Court of Alabama gave the state permission to use nitrogen gas to execute a prisoner.
The all-Republican court ruled 6-2 in favour of the state’s attorney general’s plea for Kenneth Eugene Smith to be executed by warrant.
When the individuals in charge of attaching two intravenous lines to Smith for a fatal injection were unable to do so, the Alabama Department of Corrections decided not to carry out Smith’s execution last year.
The decision brings the state one step closer to becoming the first to try nitrogen gas execution, although further legal challenges are probably in store. Although no state has tried to use nitrogen hypoxia as a method of execution, Alabama now has the same permission as Oklahoma and Mississippi.
Smith was one of two men found guilty in the 1988 Colbert County, Alabama, murder-for-hire of Elizabeth Sennett.
“Elizabeth Sennett’s family has waited an unconscionable 35 years to see justice served. Today, the Alabama Supreme Court cleared the way for Kenneth Eugene Smith to be executed by nitrogen hypoxia,” Alabama Attorney General Steve Marshall wrote. “Though the wait has been far too long, I am grateful that our capital litigators have nearly gotten this case to the finish line.”
The defence team for Smith had pleaded with the judge to deny the request for execution. Additionally, they had previously charged that the state was attempting to push Smith to “the front of the queue” for a nitrogen execution in an effort to end Smith’s lawsuit contesting the use of lethal injection techniques.
“The state seeks to make Mr. Smith the test subject for the first ever attempted execution by an untested and only recently released protocol for executing condemned people by the novel method of nitrogen hypoxia,” Smith’s attorneys wrote in a September court filing.
The prisoner would be forced to breathe only nitrogen under the suggested arrangement, which would deprive them of the oxygen they need to survive and ultimately result in their death. When combined with oxygen, nitrogen makes up 78% of the air that humans breathe in and is safe to inhale. Opponents of the new procedure have compared it to human experimentation, while supporters have theorised that it would be painless.
In the ruling on Wednesday, Chief Justice Tom Parker and Justice Greg Cook dissented.
Smith was one of two individuals, according to the prosecution, who received a $1,000 payment each to murder Sennett on her pastor husband’s behalf. The pastor was heavily in debt and wanted to collect on his insurance. The little town in north Alabama was devastated by the killing and the identity of the perpetrator. A week later, her husband took his own life. 2010 saw the execution of the second guy found guilty in the killing.