The US Supreme Court and Court of Appeals for the 11th Circuit on Wednesday refused Kenneth Smith’s application for a stay of his execution by nitrogen hypoxia.  

Kenneth Smith is scheduled to be executed by way of nitrogen hypoxia on Thursday night at the William C. Holman Correctional Facility in Atmore, Alabama. According to the Alabama execution protocol, the warden or the assistant warden “will pressurize and assess the nitrogen hypoxia system.” A mask will be placed over his face, and the nitrogen will be pumped into his body. This form of execution has never been attempted before in the US and possibly in the world. In the execution procedure documents, specific steps have been redacted and are deficient in detail, leading to some criticism from human rights organizations. 

The Office of the UN High Commissioner for Human Rights expressed its alarm:

We have serious concerns that Smith’s execution in these circumstances could breach the prohibition on torture or other cruel, inhuman, or degrading treatment or punishment, as well as his right to effective remedies. These are rights set out in two international human rights treaties that the [US] is bound by – the Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

Smith’s legal team argued that “the untested nature of nitrogen hypoxia, paired with the lasting health impacts of a prior botched execution attempt, violates his Eighth Amendment right against cruel and unusual punishment.” To bolster its Eighth Amendment complaint, Smith’s legal team provided medical records to illustrate that recent bouts of nausea create a heightened risk that Smith will vomit into his execution mask and asphyxiate.

The Alabama ACLU said that the Alabama Department of Corrections is not subject to regulation or oversight. The civil rights organization emphasized that it is an untested and unproven method of execution, and even having nitrogen stored at the prison facility puts every person present at risk of death.

While no recorded dissent or explanation was given by the Supreme Court, the 11th Circuit Court cited the Supreme Court opinion in Glossip v. Gross to state that “prisoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is ‘sure or very likely to cause serious illness and needless suffering’ and give rise to ‘sufficiently imminent dangers’.”

Notably, this is Alabama’s second attempt to execute Smith. In its first attempt, the execution team had failed to obtain the intravenous access necessary to complete an execution by lethal injection before the expiration of the death warrant.

Reverend Dr. Jeff Hood stated that he would be in the execution room with Kenneth Smith. The spiritual advisor said that the State of Alabama had him sign a waiver, with the understanding that he may also be at risk of death because of his proximity to Smith during the procedure. However, he says that will not deter him from doing his duty to administer the last rites.