The U.S. Supreme Court and a federal appeals court decided not to intervene and stop Alabama from conducting the nation’s first-ever execution by nitrogen gas.

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022. Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments. The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case. Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Three states — Alabama, Mississippi, and Oklahoma — have approved nitrogen gas as a form of execution. Death is from “nitrogen hypoxia“, that is, being in an atmosphere deficient in the life-essential gas oxygen.

The protocol in Alabama calls for an inmate to be is strapped to a gurney and fitted with a mask and a breathing tube. The mask is meant to administer 100% pure nitrogen, depriving the person of oxygen until they die.

About 78% of the air that humans breathe is made up of nitrogen gas, which may lead people to believe that nitrogen is not harmful, according to the U.S. Chemical Safety Board.

However, when an environment contains too much nitrogen and the concentration of oxygen becomes too low, the body’s organs, which need oxygen to function, begin shutting down and a person dies.

State officials have argued death by nitrogen gas is a humane, painless form of execution and that the person would lose consciousness before they die.

The man slated for execution, Kenneth Eugene Smith, is one of two men convicted in the murder-for-hire slaying of a preacher´s wife in 1988.

Prosecutors said he and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.

Sennett, 45, was found dead March 18, 1988, in her home in Colbert County with eight stab wounds in the chest and one on each side of her neck, according to the coroner.

Her husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents.

Smith´s initial 1989 conviction was overturned on appeal, but he was retried and convicted again in 1996.

The jury recommended a life sentence by a vote of 11-1, but a judge overrode that and sentenced him to death. Alabama no longer lets judges override jury decisions in death penalty cases.

John Forrest Parker, the other man convicted in the slaying, was executed in 2010.

A peace group with close ties to the Vatican said it would appeal to European businesses and tourists to boycott Alabama if it went ahead with the execution.

The warning by the Sant’ Egidio Community involves Kenneth Smith, who was convicted of a 1988 murder and who survived a botched execution attempt by lethal injection in 2022.

…At a news conference where he spoke about an eventual boycott, Mario Marazziti, Sant’ Egidio’s expert on the death penalty, mentioned that Germany automaker Mercedes Benz has a plant in Alabama and that many Europeans go to the southern state for its golf courses.

“This is a proposal that we will make if the execution of Kenneth Smith goes ahead,” he said, adding that he believed European trade or investment in Alabama amounted to hundreds of millions of dollars a year.

Those complaining it is inhumane or untested clearly are unaware of the industrial accidents that occur with nitrogen gas, which are due (in part) to the fact inhalation of oxygen-deficient environments pass out quickly with no warning indications.

Because the vaporized nitrogen offers no warning signs – such as a colored haze or an acrid odor – those exposed can quickly suffer asphyxiation without ever recognizing they are in trouble. If nitrogen levels are especially high and oxygen deficiency is extreme, death can result.

According to OSHA, between 2012 and 2020, 14 American workers died from asphyxiation related to nitrogen in 12 different workplace accidents. Avoiding these accidents is a clear challenge to the industry, and one that must be taken seriously – especially considering that these incidents are mostly preventable.

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