Supreme Court denies Alabama hitman’s bid to halt nitrogen hypoxia execution

The Supreme Court on Wednesday declined to halt Thursday's scheduled execution of convicted Alabama hitman Kenneth Eugene Smith. Smith's execution would make him the first to die via nitrogen hypoxia. Photo courtesy of the Alabama Department of Corrections.

Jan. 24 (UPI) -- The state of Alabama can proceed with its planned execution of convicted hitman Kenneth Eugene Smith on Thursday.

The Supreme Court on Wednesday denied Smith's writ of certiorari seeking to halt the execution because the state failed in an earlier execution attempt in November 2022, CNN reported.

Smith, 58, would become the nation's first inmate executed using nitrogen hypoxia.

Officials with the Alabama Department of Corrections couldn't connect an intravenous tube properly to execute Smith via a lethal injection in 2022 and had to stop when the time expired on the execution warrant.

Smith and his attorneys said a second attempt to execute him amounted to cruel and unusual punishment and the state "inflicted actual physical and psychological pain" during the failed execution attempt in 2022.

Attorney Robert Grass said a second attempt would violate Smith's rights under the Eighth and 14th amendments when arguing for the execution to be halted before the 11th Circuit Court of Appeals.

Grass also argued nitrogen hypoxia is an unproven form of execution and an ill-fitting mask or other complications might make Smith ill and cause him to choke on his vomit.

U.N. experts on Jan. 3 "expressed alarm" that Alabama corrections officials would use the untested method of nitrogen hypoxia to make Smith the first to be executed in that manner.

Alabama's execution protocol for nitrogen hypoxia would place a mask over Smith's mouth and nose and administer pure nitrogen to cause him to pass out in less than 30 seconds and pass away within 15 minutes.

After the botched execution attempt in 2022, Smith asked the 11th Circuit Court of Appeals to approve his request to be executed via nitrogen hypoxia instead of lethal injection. The court approved Smith's request, the American Bar Association reported.

A state jury in 1996 convicted Smith of the murder of Elizabeth Sennett in 1988. Sennett's husband paid Smith to kill her so he could collect a life insurance benefit and pay off his mounting debts.