Kenneth Eugene Smith is one step closer to becoming the first person in the world to be put to death with nitrogen gas, after the US Supreme Court declined to intervene on Wednesday.
A petition, called a stay of execution, filed by Smith’s attorneys and presented to US Supreme Court Justice Clarence Thomas was denied in an order of the court. There were no additional comments in the order, meaning no justices publicly dissented. Smith’s execution is scheduled for Thursday.
He’s currently being held in a cell in Holman Prison in Atmore.
Robert Grass, an attorney representing Smith, said he did not have a comment on the court’s decision. The death row inmate still has an appeal pending in federal court which could lead to the execution being called off. In that request, the 11th US Circuit Court of Appeals is being asked to block the execution because of the risks associated with the untested method, which has been publicly questioned by the UN and veterinarians.
Earlier this month, US District Judge Austin Huffaker declined to block Smith’s execution and his attorneys appealed the decision.
The Alabama Department of Corrections previously tried to execute Smith via lethal injection in 2022. The attempt failed because officials were unable to insert intravenous lines into his system for four hours. He said the experience left him with post-traumatic stress disorder.
The question presented to the Supreme Court by Smith’s attorneys was whether officials have the right to execute him a second time and whether a second execution attempt would constitute “cruel and unusual punishments” under the Eighth and 14th Amendments of the US Constitution.
If Smith’s execution goes forward, he will become the first person to be executed with any type of gas since 1999, per the Death Penalty Information Center.
Smith previously stated that his preferred method of execution is nitrogen gas but has expressed concerns regarding the state’s current protocol for the method, which states that prisoners will be fitted with a mask and breathing tube to control gas, slowly depriving them of oxygen.
Oklahoma and Mississippi have also approved the use of nitrogen gas for executions.
In a response to the Supreme Court filing, the state called the untested method “perhaps the most humane method of execution ever devised.”
Smith was convicted of murdering Elizabeth Sennett, a pastor’s wife, in 1988 in a murder-for-hire scheme. He was part of a two-person team paid to commit the crime. Upon entering the woman’s home, officials discovered she’d been stabbed 10 times.
In 1996, a jury recommended a life in prison sentence 11 to 1 but that decision was overridden by the judge presiding over the case, who sentenced Smith to death.
Alabama barred the ability of judge’s to override a jury’s recommendation in 2017 but the new law does not apply retroactively.