Judge Considers First Execution by Nitrogen Hypoxia Amid Controversy

Kenneth Eugene Smith's attorneys argue the method violates the constitutional ban on cruel and unusual punishment and interferes with his religious rights.

Kenneth Eugene Smith, convicted in a 1988 murder-for-hire case, is scheduled for execution in January by nitrogen hypoxia, marking the nation's first use of this method.
Smith's attorneys argue that the execution method violates the constitutional ban on cruel and unusual punishment and interferes with his ability to pray with his spiritual adviser.
Anesthesiologists and state officials testified during a daylong hearing, focusing on the risk of vomiting, what Smith might experience, and what could happen if he were not to receive pure nitrogen due to a faulty mask fitting.
Dr. Robert Jason Yong, an assistant professor of anesthesiology at Harvard Medical School, testified that low oxygen can result in nausea and vomiting, creating a risk of choking on aspirated vomit. He also said that if a person is exposed to less than 100% nitrogen, there is a risk they could experience the sensation of suffocation or be left in a vegetative state instead of dying.
The Alabama attorney general's office called these risks speculative and argued that the constitutional ban on cruel and unusual punishment is not a guarantee against any pain.