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US Supreme Court sides with Alabama inmate who seeks to die by nitrogen hypoxia

The U.S. Supreme Court on Monday sided with an Alabama death row inmate, who had his lethal injection called off at the last minute in November, and argues he should be put to death by nitrogen hypoxia when he is ultimately executed.

Justices without comment rejected the Alabama attorney general’s request to review an 11th U.S. Circuit Court of Appeals decision regarding inmate Kenneth Eugene Smith. The state argued the decision disregarded Supreme Court precedent that an inmate challenging an execution method must show that an alternative method is readily available, not just feasible.

Alabama has authorized nitrogen hypoxia — death as a result of breathing pure nitrogen — as an execution method but no state has attempted to use the untested method to put an inmate to death.

Smith was scheduled to be put to death by lethal injection on Nov. 17, 2022, for the 1988 murder-for-hire slaying of a preacher’s wife.

“The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction,” Thomas wrote in a dissent.

Fox News Alabama graphic

A U.S. Supreme Court has sided with an Alabama inmate who requested to die by nitrogen hypoxia. 

“To subject Mr. Smith to a second execution by lethal injection would subject him to a torturous experience of unnecessary physical and psychological pain, as has been established through Alabama’s last three execution attempts,” Smith’s lawyers wrote in a December court filing.


Prosecutors said Smith was one of two men who 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. The slaying, and the revelations over who was behind it, rocked the small north Alabama community.

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