Kenneth Smith, convicted for a murder-for-hire committed in
1988, is scheduled to be executed in Alabama on Jan. 25 using
the method, in which execution officials will bind a mask to his
face connected to a cylinder of nitrogen intended to deprive him
of oxygen.
U.S. states have found it increasingly difficult to obtain
barbiturates used in lethal-injection execution protocols, in
part because of a European ban preventing pharmaceutical
companies from selling drugs to be used in executions. As a
result, some states have sought to revive older methods such as
firing squads, while Alabama, Mississippi and Oklahoma have
introduced new gas-based protocols.
He has sued the Alabama Department of Corrections, arguing that
the proposed method comes with dangerous risks, including that
the mask's seal with his face might be broken allowing in
oxygen, botching the execution. Such a scenario could induce a
stroke or leave Smith in a permanent vegetative state, he
argued.
United Nations experts warned last week that what would be the
first instance anywhere in the world of an execution using
inert-gas asphyxiation would likely violate an international
treaty against torture and other cruel, inhuman or degrading
punishment.
Judge R. Austin Huffaker of the U.S. District Court in
Montgomery, Alabama, ruled against Smith, who sought an
injunction halting the execution to allow his litigation to
proceed.
"Smith is not guaranteed a painless death," Huffaker wrote in
his opinion, citing a U.S. Supreme Court precedent. He wrote
that Smith "has not shown the current Protocol is sure or very
likely to cause substantial risk of serious harm or superadded
pain."
Smith, 58, is one of two people alive in the U.S. to have
survived a judicial execution attempt: Alabama botched his
previously scheduled execution by lethal injection in November
2022 when multiple attempts to insert an intravenous line
failed.
Robert Grass, a lawyer representing Smith, said he planned to
appeal the ruling.
(Reporting by Jonathan Allen in New York; Editing by Sandra
Maler)
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