A federal judge in Alabama ruled Wednesday to allow for an inmate to be executed using nitrogen gas late this month, potentially clearing the path for what would be the first execution in the U.S. carried out using the method.
Kenneth Eugene Smith’s injunction was rejected by U.S. District Judge R. Austin Huffaker on Wednesday. He is slated to be executed with nitrogen hypoxia Jan. 25.
Smith’s lawyers are expected to appeal the judge’s decision and have called out the state for making his client a “test subject” for implementing an untested method, according to The Associated Press.
The execution method has so far been authorized by three states — Oklahoma, Mississippi and Alabama — but the legal battle over its use might end up before the U.S. Supreme Court.
In the Alabama case, the state plans to put a respirator-shaped mask over Smith’s mouth and nose. Then it will swap breathable air with nitrogen, causing death by the lack of oxygen.
Smith, 58, who survived a prior execution attempt in 2022, was convicted for being involved in a 1988 murder-for-hire killing of a preacher’s wife in Colbert County. Both men were paid $1,000 apiece to kill Elizabeth Sennett on her husband’s behalf, according to prosecutors. John Forrest Parker, the other man convicted in the killing of Sennett, was executed in 2010.
Last week, the United Nations issued a warning over the planned execution of Smith, arguing that it is an “untested” method that would subject him to “cruel, inhuman or degrading treatment.”
Those in support of the method say Smith’s death would be painless. And Alabama Attorney General Steve Marshall (R) said last year the Sennett family waited “an unconscionable 35 years to see justice served.”
“With today’s order, Alabama is an important step closer to holding Kenneth Smith accountable for the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” Marshall said. “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.”
Smith’s legal team countered, saying the method violates the constitutional ban on cruel and unusual punishments.