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Alabama to allow first execution using nitrogen hypoxia

Alabama tried to execute Kenneth Smith last year but failed due to a botched lethal injection.

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On Wednesday, the Alabama Supreme Court ruled in favor of a motion to allow the state to execute Kenneth Smith with nitrogen hypoxia.

The use of nitrogen hypoxia as an execution method has never been tested. The gas has a history of being extremely deadly and could pose a threat to the staff and spiritual advisers present in the execution chamber.

In August, Alabama released a heavily redacted protocol execution protocol including the use of nitrogen hypoxia. The protocol never provides any waiver for harm that advisers or staff could endure if exposed to the dangerous gas.w

Attorney General Steve Marshall posted a statement on X, formerly Twitter, after the court granted his motion to allow Alabama to use nitrogen hypoxia on Smith. 

“Elizabeth Sennett’s family has waited an unconscionable 35 years to see justice served,” Marshall wrote. “Today, the Ala. Sup Court cleared the way for Kenneth Smith to be executed by nitrogen hypoxia for the 1988 murder-for-hire of Elizabeth. Though the wait has been far too long, I am grateful that our talented capital litigators have nearly gotten this case to the finish line.”

Alison Mollman, interim legal director of the ACLU of Alabama, made a statement denouncing the use of nitrogen hypoxia. Mollman stated that Marshall and Governor Kay Ivey could be putting the lives of staff, spiritual advisers, media, and victims at risk if they do not stop Smith’s execution.

“Last year, after Alabama tortured multiple people in botched executions using lethal injection, we encouraged the state to pursue an independent evaluation of its execution protocols,” said Alison Mollman, interim legal director of the ACLU of Alabama. “Governor Ivey and the Alabama Department of Corrections failed to complete an independent review and instead insisted the problem was not having enough time to kill someone. Now, at the urging of Attorney General Steve Marshall, Alabama is rushing to put a man to death with an untested, unproven, and never-before-used method of execution. As Alabama races to experiment on incarcerated people with nitrogen gas, they put the lives of correctional staff, spiritual advisers, the media, and victims at risk by potentially exposing them to an odorless and lethal gas. Using this method has no benefit on public safety. Governor Ivey and Attorney General Marshall have a responsibility to stop the execution of Mr. Smith.” 

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Alabama previously tried to execute Smith last year but failed due to a botched lethal injection. Now, they are trying again, only with a method never tested before and could harm or kill others.

Patrick Darrington is a reporter at the Alabama Political Reporter. You can reach him at [email protected].

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