Federal Judge’s Ruling Will Permit Alabama to Execute Kenneth Smith Using Nitrogen Gas

On January 10, 2024, U.S. District Judge Austin Huffaker denied Kenneth ​“Kenny” Smith’s chal­lenge to Alabama’s intend­ed use of nitro­gen gas to exe­cute him. Although Mr. Smith plans to appeal, the rul­ing cur­rent­ly autho­rizes Alabama to use its new, untest­ed method of nitro­gen hypox­ia to exe­cute Mr. Smith on January 25.

Mr. Smith’s case is unusu­al in sev­er­al respects. First, he has already sur­vived one exe­cu­tion attempt, which left him with post-trau­mat­ic stress dis­or­der, accord­ing to a clin­i­cal psy­chol­o­gist and trau­ma expert who exam­ined him. On November 17, 2022, the state tried and failed to exe­cute Mr. Smith using lethal injec­tion but aban­doned its efforts after four hours when staff were unable to access a vein. 

Second, Mr. Smith would like­ly not be sen­tenced to death today. In 1996, a jury rec­om­mend­ed that he receive a sen­tence of life in prison by a vote of 11 to 1, but the judge over­rode its rec­om­men­da­tion and sen­tenced him to death. Alabama judges no longer have the abil­i­ty to over­ride jury sen­tenc­ing rec­om­men­da­tions, so if sen­tenced today, Mr. Smith would not be facing execution. 

Third, unless an appeals court inter­venes, Mr. Smith will be the first human being exe­cut­ed using nitro­gen gas. The con­se­quences of using this pro­to­col are com­plete­ly unknown, even to Alabama officials.

Mr. Smith’s legal chal­lenge alleged that aspects of Alabama’s nitro­gen hypox­ia pro­to­col vio­lat­ed his 1^st, 8^th and 14^th Amendment rights, as well as his reli­gious free­dom rights. For exam­ple, Mr. Smith alleged that the mask that would be placed over his face would impede his abil­i­ty to make a final state­ment or audi­bly pray; he fur­ther con­tend­ed that the pos­si­bil­i­ty that he would vom­it in the mask would cre­ate additional risk. 

At a hear­ing on December 20, 2023, the court heard evi­dence and expert wit­ness tes­ti­mo­ny from both par­ties. Mr. Smith argued that his exe­cu­tion would expose him to a ​“severe risk of a per­sis­tent veg­e­ta­tive state, a stroke, or the painful sen­sa­tion of suf­fo­ca­tion, i.e., super­added pain.” To sat­is­fy his legal bur­den, Mr. Smith also iden­ti­fied ​“fea­si­ble and read­i­ly imple­ment­ed alter­na­tives” that would reduce the risk to him, either by amend­ing Alabama’s pro­to­col or by exe­cut­ing him by fir­ing squad. Alabama argued in response that Mr. Smith’s con­cerns were spec­u­la­tive and/​or oth­er­wise barred and should be dismissed.

In his order, Judge Huffaker wrote that although Mr. Smith had prop­er­ly pled and raised sub­stan­tial Constitutional and statu­to­ry claims, he was not enti­tled to a pre­lim­i­nary injunc­tion because he had not shown he was like­ly to suc­ceed on the mer­its. Citing the U.S. Supreme Court’s ear­li­er deci­sion in Glossip, Judge Huffaker said that ​“the fact that lit­tle or no evi­dence and sci­en­tif­ic proof on [nitro­gen hypox­ia as an exe­cu­tion method] exist­ed” did not relieve Mr. Smith of his bur­den to show that the method cre­ates an unac­cept­able risk of pain. Likewise, he ruled that Mr. Smith had not shown that the pro­to­col sub­stan­tial­ly bur­dens his abil­i­ty to exer­cise his religion. 

Last week, four United Nations experts expressed alarm over Mr. Smith’s upcom­ing exe­cu­tion, warn­ing that the state’s inten­tion to kill him with the untest­ed method could sub­ject him to cru­el and inhu­man treat­ment amount­ing to tor­ture. In their joint state­ment released on January 3, the four inde­pen­dent UN mon­i­tors call on the US gov­ern­ment and Alabama to halt the exe­cu­tion. ​“We are con­cerned that nitro­gen hypox­ia would result in a painful and humil­i­at­ing death,” the experts write.