In an unprecedented case, the US Supreme Court and the Court of Appeals for the 11th Circuit denied Kenneth Smith’s plea for a temporary delay to his impending execution by nitrogen hypoxia scheduled for Thursday evening. The process is due to take place at the William C. Holman Correctional Facility in Atmore, Alabama. As per the execution protocol of Alabama, the warden or assistant warden is tasked to ensure the efficiency and readiness of the nitrogen hypoxia system.
This method of execution, which makes use of a mask and the administration of nitrogen into the body, is a first not only in the US, but potentially worldwide. Detailed procedural steps have been redacted from the execution documents, sparking controversy and criticism from human rights organizations over the lacking specifics.
Fears have been voiced by the Office of the UN High Commissioner for Human Rights, which raised concerns that Kenneth Smith’s execution could potentially violate prohibitions on torture or cruel, inhuman, or degrading treatment or punishment set by international human rights treaties.
Smith’s legal team protested that the untested nature of nitrogen hypoxia, combined with the health threats posed by a previous unsuccessful execution attempt, infringe his Eighth Amendment right against cruel and unusual punishment. In their argument, they provided medical records indicating that Smith’s recent nausea episodes heighten the risk of him vomiting into the execution mask and ultimately succumbing to asphyxiation.
The Alabama ACLU further argues that storing nitrogen within the prison facility is a serious risk, not only to the convict but also to anyone present. The organization emphasizes the absence of regulation or oversight, labeling the procedure as untested and unproven.
In its justification, the 11th Circuit Court referred to the Supreme Court judgement in Glossip v. Gross, stating that a method of execution can only be challenged successfully if there’s a “sure or very likely” risk of causing serious illness and needless suffering, with “sufficiently imminent dangers”.
Interestingly, this is not the first execution attempt on Kenneth Smith. The first attempt failed when the execution team couldn’t secure the requisite intravenous access for lethal injection before the death warrant expired.
In a disturbing twist, Reverend Dr. Jeff Hood, spiritual adviser to Smith, disclosed that he was required to sign a waiver acknowledging the risk to his own life due to his proximity to Smith during the execution. Despite the danger, he remains committed to performing his duty to administer the last rites.