A US district court on Wednesday dismissed concerns about Alabama death row inmate Kenneth Eugene Smith potentially choking on his own vomit during his planned execution by nitrogen hypoxia, a novel and untested method of capital punishment.

Smith’s legal team is urgently trying to stop the execution, which is scheduled for Thursday. They argue that the untested nature of nitrogen hypoxia, paired with the lasting health impacts of a prior botched execution attempt, violates his Eighth Amendment right against cruel and unusual punishment.

Alabama prison authorities initially attempted to execute Smith on Nov. 17, 2022, but failed to properly set the IV lines despite repeated efforts over the course of more than three hours, during which he remained strapped to a gurney. Ultimately, execution efforts were called off shortly before midnight in light of the pending expiration of Smith’s death warrant. Smith’s botched 2022 execution attempt was the third consecutive unsuccessful try carried out by Alabama prison personnel, a fact that features prominently in Smith’s efforts to stay his impending demise.

Smith argues nitrogen hypoxia poses unjustifiable health risks

In an application for a stay of execution filed with the US Supreme Court last week, Smith’s lawyers asserted:

Having tried and failed to execute Mr. Smith by lethal injection on November 17, 2022, the State now intends to use nitrogen hypoxia — a method of execution never before attempted by any state or the federal government — pursuant to a protocol that has never been tested. The threatened injury to Mr. Smith outweighs the harm that a stay would cause the State, and such relief is in the public interest.

To bolster its Eighth Amendment complaint, Smith’s legal team provided medical records and statements to illustrate that recent bouts of nausea create a heightened risk that Smith will vomit into his execution mask and asphyxiate.

Smith asserted he has experienced intermittent spells of nausea and vomiting over the past month, which medical doctors opined was linked to anxiety and Post-Traumatic Stress Disorder (PTSD), thus increasing the risk of substantial harm during a nitrogen-hypoxia execution.

Physician Robert Jason Yong told the US District Court for the Middle District of Alabama that he believed Smith’s nausea and vomiting were linked to his anxiety and that there was a “significant risk” he would experience these symptoms during the execution. Doctor Katherine Porterfield said in a separate filing that Smith’s nausea and vomiting were among PTSD symptoms that have worsened as the execution has drawn closer, indicating a “substantial and serious risk” that Smith would experience nausea during his execution.

The 11th Circuit Court of Appeals asked the district court to consider the new evidence and determine whether it would change its previous conclusion that nitrogen hypoxia does not create a substantial risk of serious harm in Smith’s case.

Middle District of Alabama eschews Smith’s request, again

The district court released a strongly-worded opinion on Wednesday, “reluctantly” authorizing Smith to supplement his case record but stated that this evidence did not change its conclusion on the legality of his execution by nitrogen hypoxia.

In its decision, the court was dismissive of Smith’s claims of nausea and vomiting, stating reports of these spells were “based entirely in his own personal reports,” adding they have not “been corroborated by anyone else.” Although the spells of nausea and vomiting have been documented in Smith’s medical records, and assessed by physicians Yong and Porterfield, the court suggests these spells lacked witnesses and took umbrage with what it saw as a lack of adequate detail in Smith’s medical records as to the precise timing and frequency of the nausea and vomiting spells, and data related to their timing relative to food and beverage consumption.

The court repeatedly described Smith’s nausea claims as “purported” and “uncorroborated,” and the ruling judge described the latest tranche of evidence, which included Smith’s medical records and the corroborating statements by physicians, as “broad and non-specific.” The court also stated that the prison warden planned to deny food and water to Smith for at least eight hours before the scheduled execution, which the judge felt “undermined” the two medical doctors’ concerns.

Ultimately, despite the novelty of nitrogen hypoxia as a state-sanctioned execution method, the court held that Smith’s concerns were possible, but too speculative to sway an Eighth Amendment argument:

As before, the substantial risk of severe harm and pain Smith alleges is theoretical, possible only upon the occurrence of a cascade of unlikely events: Smith in fact vomits during the execution, precisely between the time nitrogen begins to flow and before he reaches unconsciousness, vomit remains in his mouth and throat in a sufficient volume to block his airway such that he chokes or otherwise experiences severe pain prior to his loss of consciousness or death by nitrogen hypoxia.

Novel execution method draws international attention, apprehension

In recent weeks, many critics have expressed concern over speculation as well, albeit on the other side of the coin. Given the lack of precedent for this means of execution, all theories about how it will affect Smith and other nearby prison personnel, healthcare professionals, religious advisors, etc., are, by definition, speculative.

UN officials expressed alarm in a statement earlier this month, claiming that nitrogen hypoxia could subject Smith “to cruel, inhuman or degrading treatment or even torture.” The officials added that there is no scientific evidence to prove Smith’s death by pure nitrogen would not result in grave suffering.

Justin Mazzola, a researcher with Amnesty International USA, raised similar concerns in a statement:

This execution will be carried out by nitrogen gas, a method not previously used, on a man who was subjected to a cruel botched execution attempt just 14 months ago. The Office of the UN High Commissioner for Human Rights highlighted how this new untested method could be extremely painful, result in a botched execution, and could amount to torture or other cruel, inhuman, or degrading treatment or punishment, thereby violating international human rights treaties that the U.S. has ratified. It is high time the death penalty was abolished.

Olivia Ensign, a senior advocate and researcher with Human Rights Watch, echoed the sentiment:

This wholly untested method of execution raises the specter of torture or other cruel, inhuman, or degrading treatment. … Nitrogen gas also presents a health hazard to those involved in Smith’s execution, including his spiritual advisor, whom the Alabama Department of Corrections required to sign a waiver acknowledging the risks of possible exposure to the gas.

Smith was convicted for his role in a 1988 murder-for-hire scheme. Though a jury held 11 to one in favor of a sentence of life without parole, the sentencing judge imposed the death penalty via judicial override, a practice that was outlawed in Alabama in 2017, albeit without retroactive effect.

JURIST Deputy Editorial Director William Hibbitts contributed to this report.