Federal Judge Allows Alabama to Conduct Nation’s First Execution Using Nitrogen Gas

The gurney in Huntsville, Texas, where Texas' condemned are strapped down to receive a lethal dose of drugs, on May 27, 2008. AP Photo/Pat Sullivan

A federal judge has ruled Alabama can proceed with the planned execution of an inmate using nitrogen gas later this month, despite objections from the man’s lawyers that the method is “cruel and experimental.”

In his ruling, filed on Jan. 10, Alabama District Judge R. Austin Huffaker rejected convicted murderer Kenneth Eugene Smith’s request for a preliminary injunction to stop his scheduled execution set for a thirty-hour time frame between Jan. 25 and Jan. 26. The ruling has given the state a green light to proceed, with what could become the nation’s first execution using nitrogen hypoxia.

Kenneth Eugene Smith was one of two men convicted for the 1988 murder of a preacher’s wife. Prosecutors successfully argued the two men 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. John Forrest Parker, the other convicted man, was executed for the crime in 2010.

Judge Huffaker acknowledged that while nitrogen hypoxia is a new method, lethal injection, which is commonly used all over the country, was also once new. He concluded there wasn’t enough evidence to support the argument that nitrogen hypoxia would “cause Smith superadded pain short of death or a prolonged death.”

Smith’s initial 1989 conviction was overturned on appeal, but he was retried and convicted again in 1996. A jury recommended a life sentence by a vote of 11-1. The judge overrode the recommendation and sentenced him to death. Alabama has since changed the rules and doesn’t allow judges to override a jury’s decision on death penalty decisions anymore.

An Appeal Is Currently Pending

Robert Grass, an attorney acting for the condemned, said he would appeal the judge’s decision. Attorneys acting for Smith have argued the new protocol is riddled with unknowns and potential problems and violates a constitutional ban on cruel and unusual punishment.

In court filings, they also noted the American Veterinary Medical Association released euthanasia guidelines in 2020 that found nitrogen hypoxia is an acceptable method of euthanasia for pigs but not for other mammals because it could create an “anoxic environment that is distressing for some species.”

Under the proposed execution method, a face mask is placed over the condemned person’s face, which replaces breathable air with nitrogen, causing death by suffocation. Proponents have theorized it would be painless. Opponents have likened it to human experimentation, including the United Nations, who have warned killing an inmate with an untested method could be considered cruel and inhuman treatment amounting to torture.

Alabama Attorney General Steve Marshall has praised the judge’s ruling, saying it moves the state “an important step closer to holding Kenneth Smith accountable for the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett.”

“Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done.”

Smith has already survived a prior attempt to execute him. The Alabama Department of Corrections tried to execute him by lethal injection in 2022 but failed when authorities couldn’t connect two intravenous lines.

As of 2024, Alabama, Mississippi, and Oklahoma allow nitrogen hypoxia as an execution method, but none have used it so far. At the same time, 27 states nationwide have capital punishment as a legal penalty.