MONTGOMERY — The fate of Alabama death row inmate Kenneth Eugene Smith could be decided in a matter of weeks as possibly the first execution by gas in Alabama.

If Gov. Kay Ivey authorizes Smith’s execution by nitrogen hypoxia, it would be the first gas execution for criminal punishment nationwide since 1999.

Smith — who was sentenced to death by a judge in 1996 after being convicted of killing a woman in a murder-for-hire scheme in 1988 — was set to be executed Nov. 17, 2022, but after Alabama Department of Corrections staff spent an hour trying to set IV lines for the lethal injection drugs, his execution was halted.

In an Aug. 25, filing in the Alabama Supreme Court, Attorney General Steve Marshall said the state is now prepared to carry out Smith’s execution by means of nitrogen hypoxia, a request made by Smith and his attorneys in recent court documents.

“The state respectfully moves this honorable court to enter an order authorizing the commissioner of the Department of Corrections to carry out [Smith’s] sentence of death within a time frame set by the governor, so that final justice may be visited upon the murderer of Elizabeth Dorlene Sennett,” Marshall said in the court filing.

Smith’s failed execution last year resulted in a nearly eight-month pause on executions as ADOC reviewed and updated its lethal injection process. Previously, the planned Sept. 22, 2022, execution of Alan Eugene Miller by lethal injection was also unsuccessful, and Joe Nathan James Jr.’s execution on July 28, 2022, lasted more than three hours before he died.

In a February 2023 motion filed in the United States District Court for the Middle District of Alabama, Smith’s attorneys said subjecting Smith to another attempt at lethal injection violates the Eight Amendment of the Constitution, prohibits cruel and unusual punishment.

The complaint said that with lethal injection, “the risk of pain associated with the State’s method is substantial when compared to known and available alternative.”

His attorneys said in the filing that nitrogen hypoxia is a more “humane alternative” and would have allowed Smith to avoid severe pain than being poked with needles for hours.

“Assuming proper administration, nitrogen hypoxia would cause an individual to lose consciousness within seconds and experience no pain or discomfort,” the court filing states.

The U.S. Supreme Court in May sided Smith’s lawyers, agreeing that he can be executed via nitrogen hypoxia, an execution method approved by state lawmakers in 2018.

If carried out, Smith would be the first person executed by nitrogen hypoxia in Alabama.

However, Smith’s attorney, in recent court filings, are attempting to avoid a second execution attempt using any method due to the psychological torture he has endured from the previous botched execution.

The federal district court held that “Smith’s allegations support a plausible claim of cruel superadded pain as part of the [attempted] execution” and “it is plausible rather than merely possible, that a second lethal injection execution poses a substantial risk of severe pain to Smith,” Smith’s attorneys noted in an August response to the state’s motion to dismiss Smith’s petition against another lethal injection attempt.

“This court should reach the same conclusion about Mr. Smith’s related allegations supporting his claim. … that the state should be prohibited from making another attempt to execute him by any method,” Smith’s attorneys stated.

The last lethal gas execution in the United States was carried out in 1999 in Arizona where lethal injection is not the primary method of execution.

Two other states — Mississippi and Oklahoma— allow nitrogen hypoxia to be used for executions but have not yet used the method as lethal injection is the primary method of execution in all states.

Per state statute, gas execution can be used in lieu of lethal injections in Oklahoma only if the necessary chemicals are unavailable or if lethal injection is ruled unconstitutional.

According to Oklahoma Department of Corrections Spokesperson Kay Thompson, the state does not have a protocol completed yet for gas executions.

“The director wants to wait until multiple executions are carried out with nitrogen before considering moving forward” Thompson said. “We are observing what Alabama does — their process, how the executions go, the humaneness, etc. If nitrogen hypoxia appears to be a better process, we will move toward training staff, securing equipment, speaking with the legislature, etc.”

As customary, the Alabama Department of Corrections declined CNHI’s interview request. ADOC also did not respond to request for any documents or information related to protocol, training or procedures related to nitrogen hypoxia executions, which has yet to be tested in the state.