A federal judge in Alabama ruled on Wednesday that the state can proceed to use nitrogen gas in the execution of Kenneth Smith. Smith has been on death row since he was convicted of murder in 1988.

Smith is currently scheduled to be executed on January 25. He was previously scheduled to be executed on November 17, 2022, but after a failed attempt at inserting a needle for lethal injection, the execution was postponed. Alabama Attorney General Steve Marshall then filed a motion to administer death by means of nitrogen hypoxia. Despite this method of execution being approved for use in two other states, Alabama will be the first state to actually administer the death penalty through this means.

Following the decision to use nitrogen gas, Smith filed for an injunction on the execution, challenging the method of execution under the First, Eighth, and Fourteenth Amendments of the US Constitution. In his request, Smith included a reference to the American Veterinary Medical Association (AVMA) Guidelines for Euthanasia of Animals, which states that nitrogen is recommended as a method of euthanasia for pigs, but no other mammals.

In the Middle District of Alabama, however, Judge R. Austin Huffaker Jr. denied the injunction and ruled that the execution should proceed as scheduled.

Smith is not the only one opposed to the use nitrogen gas. UN experts called on the US last week to cancel the execution, alleging that the use of nitrogen hypoxia was inhumane. Additionally, death penalty abolitionists have spoken out against the use of nitrogen, and called on the Jewish community to take action. Those who oppose the use of nitrogen gas fear the precedent that this execution will set for death penalty cases in the future.

Some are also worried about the potential hazards that the use of nitrogen gas may pose to others present at the execution, including staff, witnesses, and spiritual advisors. According to the Death Penalty Information Center, because nitrogen hypoxia has never before been used in an execution, it is uncertain how safe the procedure will be.

The Death Penalty Information Center warned:

Alabama’s protocol appears to require preventative measures by staff such as reviewing “training materials on dangers and hazards associated with nitrogen gas in the workplace,” visual inspection of the mask and gas canisters, and listening for the sound of a gas leak. However, the protocol provides no guarantee of safety for persons in the death chamber, nor does it address how the State will prevent the gas escaping the chamber and affecting witnesses in the event of an accident. According to anesthesiologist Joel Zivot, nitrogen gas “is dangerous to anyone in the vicinity.”

Without court action, the state will be allowed to proceed with Smith’s execution on the 25th.