A federal appeals court has denied Kenneth Eugene Smith's motion to stay the death penalty, clearing the way for Alabama to execute Smith by nitrogen hypoxia on Thursday. An appeal to the U.S. Supreme Court also failed.

In a 2-1 decision, judges on the U.S. Court of Appeals for the Eleventh Circuit ruled against Smith's appeal for a preliminary injunction against his scheduled execution. Smith's appeal failed, in part because Supreme Court precedent says the new method of execution does not violate Eighth Amendment standards regarding cruel or unusual punishment, the court said.

Although Judge Charles Wilson agreed and voted to dismiss Mr. Smith's petition, Mr. Smith faces the possibility of cruel and unusual punishment, including the possibility of choking on his own vomit. He wrote that he had several concerns. Smith claimed that the nitrogen gas could cause nausea and vomiting, but the Alabama Department of Corrections testified that if Smith had vomited, the enforcement team would not have intervened and that Smith would have been exposed to his own vomit. He said it could cause suffocation.

“My first concern is what would happen if Smith vomited after activating the nitrogen, as ADOC does not have a protocol to handle this situation,” Wilson wrote. “Instead, ADOC Regional Director Cynthia Stewart Riley testified that if something like this happened, the enforcement team would do nothing and Smith could have died of suffocation. And expert testimony demonstrated that if Smith vomited after nitrogen was introduced, he could suffocate on his own vomit.”

Justice Jill Pryor, the lone dissenter, did believe that Mr. Smith presented sufficient evidence to support his Eighth Amendment claims, particularly the claim that he likely died of suffocation from his own vomit. He said there was. Mr Pryor warned that if Smith dies, he fears the cost will be: Smith's Human Dignity and Our Human Dignity. ”

Alabama Attorney General Steve Marshall celebrated the circuit court's decision and posted on X that he was confident the death penalty would be carried out on Thursday.

“While Mr. Smith will likely appeal to the U.S. Supreme Court, my office stands ready to continue fighting on behalf of Liz Sennett,” Marshall wrote in a post. “Two courts have now rejected Mr. Smith's claims. I remain confident that the Supreme Court will rule on the side of justice and that Smith's death sentence will be carried out tomorrow.”

Smith was convicted in 1996 for the 1988 murder-for-hire plot of Elizabeth Sennett. Although the jury voted 11-1 to recommend a life sentence, the judge reversed this decision and sentenced Smith to death. Alabama abolished its judicial nullification system in 2017, but Smith and other death row inmates sentenced under the now-defunct system have not been given the chance to be tried again.

Smith survived a botched execution by lethal injection in November 2022. Now, as the state seeks to execute Mr. Smith again using a method never used before, Mr. Smith and his lawyers say he is being used as a test subject.

Smith and his lawyers are expected to appeal to the Supreme Court, which also denied his request for a stay on Wednesday. Anti-death penalty advocates and human rights groups have specifically called for a moratorium on executions in recent weeks. United Nations human rights experts have warned that Alabama's decision to carry out the death penalty by nitrogen hypoxia would violate the ban on torture and cruel and unusual punishment.

Although the state claims that implementing the new method of execution will be humane and safe, its actions appear to show the opposite. APR has been told by sources that witnesses to the execution, including journalists, will not be present in the regular viewing room and will instead watch the execution via livestream from two trailers. Sources say the livestream will take place on a private feed managed by ADOC.

ADOC Director Jon Hamm will be in a separate room secured with plexiglass that was cut by the incarcerated people, officials said.

However, Smith's spiritual advisor, Dr. Jeff Hood, will be in the execution chamber when the act takes place. Hood was asked to sign a document acknowledging the potential risks of being in Smith's execution chamber. The document warned that in a “highly unlikely event” Smith's mask could come off and the gas could spread into a hazardous area of ​​about 2 feet.

Despite the potential danger to innocent bystanders, including the executioner, Alabama authorities remain adamant about Smith's execution, scheduled for Thursday at 6 p.m.