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Kenneth Eugene Smith is slated to become the first person in the world put to death with nitrogen gas after the US Supreme Court and a federal appeals court both refused to stop his execution on Thursday.
The US Supreme Court announced its decision in the afternoon, while news of the federal ruling came around 7pm. Smith is scheduled to be put to death around 6pm on Thursday at William C Holman Correctional Facility in Atmore.
“Smith has failed to show a substantial likelihood of success on the merits of his claims,” the 11th US Circuit Court of Appeals ruled. Smith’s attorneys asked the court to block the execution because of the risks associated with the untested method, which has been publicly questioned by the UN and veterinarians.
“Smith may not be constitutionally guaranteed a painless death, but I have concerns that these circumstances may rise to a cruel and unusual execution,” Judge Charles R Wilson wrote in a concurring opinion.
Earlier this month, US District Judge Austin Huffaker declined to block Smith’s execution and his attorneys appealed the decision. On Thursday, the appeals court affirmed his ruling.
Judge Jill A Pryor wrote the only dissenting opinion. The cost of using the method, she wrote, “will be Mr Smith’s human dignity, and ours.”
Referring to the previous ruling from Judge Huffaker, she added, “I part with the majority opinion because I believe the district court clearly erred in its factual findings regarding the substantial risk part of the Supreme Court’s Eighth Amendment test.”
One of the main concerns Smith has raised regarding the execution method is the likelihood that he’ll suffocate in his own vomit. Vomitting is a known side effect of oxygen deprivation and the prisoner has said that he frequently suffers from nausea due to his post-traumatic stress order condition.
Smith said he sustained the condition after his botched execution attempt in 2022 during which officials were unable to insert intravenous lines into his system in order to administer lethal drugs.
Judge Huffaker said Smith would only suffer from additional pain in a series of unlikely circumstances. Judge Pryor disagreed.
“When a person inhales vomit and asphyxiates, he experiences ‘painful physical sensations of choking and suffocation,’” she wrote. “As I see it, this cascade of likely events is, in turn, likely to prolong or superadd pain and suffering to Mr Smith’s death.”
Robert Grass, an attorney representing Smith, said he intends to appeal the latest federal court decision to the Supreme Court.
This is a developing story…