A controversial new execution method is set to end the life of a death row inmate next week.
Kenneth Eugene Smith, a death row inmate since January 1990, is facing execution by a method never before used in the United States: Nitrogen hypoxia.
The Supreme Court of Alabama, which is entirely composed of Republican members, last year approved Attorney General Steve Marshall's request for Smith's execution to proceed, deciding in a 6-2 vote without any accompanying public statement, according to PEOPLE.
Although the court's order did not mandate the use of pure nitrogen, court filings reveal that Marshall intends to employ nitrogen hypoxia, as reported by the Associated Press.
The concept of using nitrogen hypoxia for executions isn't entirely new; it has been sanctioned by legislatures in Alabama, Oklahoma, and Mississippi. Yet, to date, no state has ever carried out an execution with this method, which replaces the oxygen in a person's lungs with nitrogen.
Proponents of nitrogen hypoxia claim that the process is pain-free. However, without any real-world applications of this technique to date, these assertions remain theoretical and untested.
In a December court hearing, the state attorney's general office discussed the implementation of nitrogen hypoxia, asserting that this method would induce unconsciousness within seconds and result in death within minutes.
However, experts in veterinary science in both the US and Europe have expressed reservations about the suitability of this method for most small mammals, excluding pigs.
The decision to accept Smith's new execution date of January 25 has stirred controversy. The UN High Commissioner for Human Rights in Geneva has classified "suffocation by nitrogen gas" as a form of torture, per The Gazette.
Smith's legal team has also strongly opposed this decision, raising concerns that his client might become a "test subject" for the unproven method. During a recent appeal to the 11th US Circuit Court of Appeals on January 19, the attorney argued that not only was the method flawed, but also that the state intended to execute Smith under unprecedented circumstances.
Professor David Morton, an emeritus of biomedical science and ethics at the University of Birmingham in the UK, was part of the panel that formulated the commission's guidelines. In an interview with The Guardian, Morton expressed his reservations about the method, stating: "It is effective, but it can cause severe distress before unconsciousness and death ensue. In effect, it is a suffocation method.
"It is likely also that there will be considerable species variation, and we are not sure what will happen in humans. Animal experiments are usually used as a proxy for humans, but not so in this case, it seems – the ultimate test is being carried out using a human being."
Smith, who is currently on death row at William C. Holman Correctional Facility, was convicted for the 1988 murder of Elizabeth Dorlene Sennett; the culmination of a tragic plot involving her husband, a local minister entangled in an affair, and debt. Smith was one of two men convicted of capital murder for the murder-for-hire killing of a preacher’s wife, Elizabeth Dorlene Sennett.
Prosecutors said Smith was paid $1,000 by Charles Sennett, the pastor of the Westside Church of Christ in Sheffield, Alabama in 1988, to forcefully take his wife's life, per CBS News.
According to a 2000 decision from the Court of Criminal Appeals of Alabama reviewed by PEOPLE, the crime was orchestrated to resemble a botched burglary and Elizabeth Sennett’s brutal death by stabbing was the result of a scheme to claim insurance money.
Although the jury initially recommended a sentence of life in prison without parole by an 11 to 1 vote, the judge overruled this, sentencing Smith to death instead.
Alabama's protocol for nitrogen hypoxia requires the inmate to be strapped to a gurney with a mask, funneling nitrogen gas until death is confirmed.
Back in November, a statement to AL.com from Smith’s attorneys - Robert Grass and Andrew Johnson - confirmed that they were fighting the decision that would see their client executed via nitrogen hypoxia. Their statement read: "We are disappointed in this decision and will continue to pursue the enforcement of Mr. Smith’s rights through the judicial process.
"It is noteworthy that two justices dissented from this Order. Like the eleven jurors who did not believe Mr. Smith should be executed, we remain hopeful that those who review this case will see that a second attempt to execute Mr. Smith – this time with an experimental, never-before-used method and with a protocol that has never been fully disclosed to him or his counsel – is unwarranted and unjust."
Per the Wall Street Journal, the Death Penalty Information Center (DPIC) also issued a statement back in the fall slamming the decision to move forward with the method.
Reps for the non-profit organization said in a statement: "With its record of botched executions, Alabama is the very last state that should be experimenting with an untested method of execution like this one. The truth is that no one — not even Alabama officials — know what will happen when they use nitrogen gas."
Additionally, in an article on the DPIC's official website, they argue that the "use of this untested method may also pose dangers to spiritual advisors and prison staff in the execution chamber."
Additionally, The Equal Justice Initiative - a legal advocacy group that has worked on death penalty issues - has previously spoken out against the method, stating that Alabama has a history of "failed and flawed executions and execution attempts" and "experimenting with a never before used method is a terrible idea," as cited by ITV.
"No state in the country has executed a person using nitrogen hypoxia and Alabama is in no position to experiment with a completely unproven and unused method for executing someone," Angie Setzer, a senior attorney with the Equal Justice Initiative added.
The path to Smith's execution has been fraught with complications. In November of 2022, an attempt at lethal injection was abandoned after hours of difficulty, which led to a temporary reprieve as the execution warrant approached expiration. The Alabama officials assured the court they would not attempt lethal injection again for Smith.
Execution by nitrogen hypoxia was first authorized in Alabama in 2018 during a shortage of drugs used to carry out lethal injections, but the state has not employed the method to carry out a death sentence.
At the time, the state’s corrections director at the time, Joe Allbaugh, provided some reasoning behind the state's decision to introduce the method, saying: "Trying to find alternative compounds or someone with prescribing authority willing to provide us with the drugs is becoming exceedingly difficult."
