Alabama wants to suffocate a man to death. So far, no court is stopping them from trying.

An appeals court rejected Kennth Smith's challenge to the nitrogen gas execution plans on Wednesday night. SCOTUS has already rejected a different challenge he brought.

UPDATE: On Thursday evening, Jan. 25, the Supreme Court denied Kenneth Eugene Smith’s challenge related to his method of execution, allowing the state’s execution attempt to proceed. Law Dork covered that decision here.

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Note: This report has been updated and expanded since initial publication, with the latest edit at 10:45 p.m.

The U.S. Supreme Court on Wednesday afternoon denied Kenneth Eugene Smith’s request for a stay of execution relating to his claim that trying to execute him for a second time would violate the Eighth Amendment’s ban on cruel and unusual punishments.

Alabama intends to kill Smith using nitrogen gas on Thursday evening, something no state has done previously. Nonetheless, his challenge related to that method of execution — separate from the case denied at the Supreme Court on Wednesday — has been rejected thus far in lower federal courts.

The latest of those decisions came Wednesday evening, when the U.S. Court of Appeals for the Eleventh Circuit, on a 2-1 vote, rejected Smith’s request to stop his execution — holding that he had not shown that the state’s protocol for carrying out the untested nitrogen gas execution is “sure or very likely” to cause “unnecessary suffering.”

This challenge is likely to reach the Supreme Court as well, but, as of Wednesday night, there is nothing preventing the state from proceeding as planned on Thursday.

[Update, 11:30 a.m. Jan. 25: Kenneth Smith’s lawyers have filed requests for a stay of execution and for a writ of certiorari at the Supreme Court to appeal last night’s appellate ruling against Smith on his challenge to Alabama’s nitrogen gas method of execution plans.]

[Update, 6:15 p.m., Jan. 25: Both Alabama’s opposition and Smith’s reply have been filed at the Supreme Court. As such, a ruling could come any time.]

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A new protocol

Smith was sentenced to death as punishment for the 1988 murder of Elizabeth Dorlene Sennett. The jury in his 1996 trial recommended a sentence of life without the possibility of parole on an 11-to-1 vote, but, under Alabama law at the time, the judge could override that decision. The judge did so, sentencing Smith to death.

When Alabama went forward and tried to kill Smith using lethal injection in 2022, it failed — the third attempted execution that year where prison officials took hours to complete the execution or were unable to carry out the execution at all.

As I covered at Law Dork previously, that led to changes that Alabama implemented giving officials more time to try to carry out executions going forward — a death warrant is now good for 36 hours instead of 24 hours. In Smith’s case, the state still wanted to kill him, but it sought to use nitrogen gas instead of lethal injection to do so.

As I highlighted before, but bears repeating, Scientific American explained how we got here in a September 2022 article — and it’s not pretty:

“The entire proposal for nitrogen gas was the product of a 14-page report made by a criminal justice professor,” says Corinna Barrett Lain, a law professor at the University of Richmond, who’s writing a book on lethal injection. “He’s not a doctor. He doesn’t have any medical training. He’s not a scientist. But he knew one of the legislators.”

Moreover, since no one has used nitrogen gas in executions previously, Alabama officials had to develop their own protocol for doing so.

It only finalized and released that new protocol in August 2023. It is a macabre document, as one would expect, but it is particularly notable how this method of execution actually potentially presents dangers to others as well.

The actual execution is laid out, with redactions, to make clear the usual — and new — elements of the nitrogen gas execution process:

And, it lays out the aftermath:

There is much more in the document, but that gives an idea of all of the new procedures — that come with potential dangers to many involved — that Alabama Department of Corrections officials will need to implement to carry out a nitrogen gas execution without mishap.

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Legal challenges

Now, Alabama intends to use this new method to try to kill a man for the second time whose jury didn’t even want to see him put to death.

The Supreme Court said on Wednesday that it isn’t going to weigh in on the repeated efforts to kill Smith. We don’t know the vote. No justices bothered to write to explain why they didn’t take up this question — or why not doing so was wrong. No justices even noted that they opposed the decision not to take up the case or grant a stay of execution in conjunction with the request.

The second challenge, to the nitrogen gas execution protocol, was pending at the Eleventh Circuit when the Supreme Court ruled on the other challenge. Hours later, though, the appeals court issued its decision rejecting the method of execution challenge.

In an unsigned, per curiam opinion, the court’s majority stated, “Smith asserts that the Protocol as developed by ADOC fails to ensure an airtight seal and would allow oxygen to infiltrate the mask. This oxygen infiltration while nitrogen is being pumped into the mask could lead to a persistent vegetative state, stroke, or suffocation.”

Nonetheless, the majority held that Smith did not show that the method is “sure or very likely to cause serious illness and needless suffering,” and “will cause sufficiently imminent dangers.”

Judging whether the district court’s factual conclusions were “clearly erroneous,” which the majority noted is a “highly deferential standard of review,” the appeals court concluded in a key part of the decision about the mask to be used in the execution that “it is not clearly erroneous to conclude” — as the district court had — “that the mask will be adequately sealed to create sufficiently severe hypoxic conditions that, according to expert testimony, will lead to unconsciousness within seconds.”

As such, the appeals court held, “Based on this record, we cannot say the mask is ‘sure or very likely to’ dislodge or permit enough oxygen to infiltrate to create a substantial risk of severe pain.”

Judge Charles Wilson, a Clinton appointee, concurred, writing, “I have concerns that these circumstances may rise to a cruel and unusual execution,” but ultimately joining the majority because, in his view, Smith did not show that the district court’s factual findings were clearly erroneous.

Judge Jill Pryor, an Obama appointee, dissented, writing, “I believe the district court clearly erred in its factual findings regarding the substantial risk part of the Supreme Court’s Eighth Amendment test.”

Specifically, as to the possibility that Smith will vomit during the execution, she concluded the evidence showed that is likely. “Because no one will intervene if he vomits, his vomit will flood his face, both nose and mouth,” she then explained. “And the record reflects that when a person inhales vomit and asphyxiates, he experiences ‘painful physical sensations of choking and suffocation’” — the very type of “superadded” pain the Eighth Amendment, even under recent Supreme Court precedent, prohibits.

Because of Wilson’s concurring opinion, it would appear likely that Judge Britt Grant, the third judge on the panel and a Trump appointee, wrote the per curiam opinion — or at least the relevant parts regarding the Eighth Amendment method of execution claim.

The questions remaining then are whether the justices — any justice or justices — will say anything about Alabama’s decision to use this new, untested method of execution if and when an appeal comes to them and whether any state or federal official will stop Kenneth Eugene Smith’s scheduled execution from going forward.