An Alabama inmate would be the test subject for the “experimental” execution method of nitrogen hypoxia, his lawyers argued as they asked the justices to reject the state’s request to carry out his death sentence using the new method.
In a lawsuit filed Friday, attorneys for Kenneth Eugene Smith asked the Alabama Supreme Court to deny the attorney general’s request to set an execution date for Smith using the proposed new method of execution. Nitrogen gas is approved as an execution method in three states, but it has never been used to kill an inmate.
Smith’s lawyers argued that the state had revealed little information about how nitrogen executions worked and had released only a redacted copy of the proposed protocol.
“The State is attempting to make Mr. Smith a test subject for the first attempt at execution by using an untested and recently published protocol for executing condemned people using the novel method of nitrogen hypoxia,” Smith’s attorneys wrote.
In the proposed method, hypoxia would be caused by forcing the occupant to breathe only nitrogen, depriving them of the oxygen needed to maintain body functions and causing them to die. Nitrogen makes up 78% of the air humans breathe and is harmless when inhaled with oxygen. While proponents of the new method suggested it was painless, opponents compared it to human experiments.
The lawyers said Smith “already faced a failed execution attempt” in November when the state tried to kill him by lethal injection. The Alabama Department of Corrections canceled the execution because the execution team could not connect the required two intravenous lines to Smith.
His lawyers said Smith has ongoing appeals and accused the state of trying to put Smith “at the forefront” of other inmates in order to challenge Smith’s challenge to the lethal injection procedure.
Alabama approved nitrogen hypoxia in 2018, but the state has not yet attempted to use it to enforce a death sentence. Oklahoma and Mississippi have also approved nitrogen hypoxia but have not used it.
Trip Pittman, the former Alabama state senator who proposed the new method of execution, has disputed criticism that the method is experimental. He said that while no state had carried out a nitrogen death sentence, people had died from inhaling nitrogen in industrial accidents and suicide attempts, so the effects were well known.
Smith was convicted in 1988 of the contract killing of Elizabeth Sennett in Colbert County, Alabama.
Prosecutors said Smith was one of two men who were each paid $1,000 to kill Sennett on behalf of her husband, who was deeply in debt and seeking to collect on insurance. The other man convicted of the murder was executed in 2010. Charles Sennett, the victim’s husband and a Church of Christ minister, killed himself as the investigation focused on him as a possible suspect, according to court documents.