Alabama can proceed with first nitrogen gas execution in U.S., appeals court rules
Kenneth Eugene Smith was set to become the first person executed in the United States using nitrogen gas.
Alabama can proceed with its plan to conduct the first execution in the U.S. with nitrogen gas after a federal appeals court wasn't convinced Wednesday that the method violates the constitutional ban on cruel and unusual punishment.
Barring any last-minute court or state intervention, Kenneth Eugene Smith is set to die as soon as Thursday via nitrogen hypoxia, in which a person breathes only nitrogen and dies from a lack of oxygen.
Inmate Kenneth Eugene Smith.Alabama Department of Corrections via APThe majority ruling from the 11th U.S. Circuit Court of Appeals concurs with another decision this month by a federal judge in Alabama that sided with the state Corrections Department in its attempt to use nitrogen gas in Smith's execution.
"There is no doubt that death by nitrogen hypoxia is both new and novel," the majority wrote in its opinion. "Because we are bound by Supreme Court precedent, Smith cannot say that the use of nitrogen hypoxia, as a new and novel method, will amount to cruel and unusual punishment in violation of the Eighth Amendment by itself."
In a dissenting opinion, Circuit Judge Jill Pryor said she is worried about what might happen to Smith in the death chamber under an untested method.
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