Concerns and uncertainty continue to grow over the upcoming execution of an Alabama inmate using an untested gas method.

Kenneth Eugene Smith is scheduled to be the first inmate in the country to be executed using nitrogen hypoxia on Jan. 25, 2024.

However, his spiritual advisor, Jeff Hood, has filed a lawsuit against the Alabama Department of Corrections alleging that its vague protocol violates his and Smith’s freedom of religion, and also does not guarantee his safety while accompanying Smith in the gas execution chamber.

“Are you willing to die for this,” Hood said Smith asked him during their first discussion.

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. He subsequently elected to be executed by gas to avoid another lethal injection attempt.

Hood has been a spiritual advisor to many death row inmates and has been present for four of their executions, including the lethal injection execution of Casey McWhorter who was executed in November in Alabama.

Noting that ADOC’s executions appeared to be the most “mismanaged and unprofessional” he has experienced, Smith’s impending gas execution, Hood said, brings him grave concerns regarding rights and safety.

Hood said he felt rushed by ADOC staff to sign the waiver, or the Acknowledgement of Spiritual Advisor form, Nov. 20 that was presented to him by staff. The waiver acknowledges that nitrogen gas can’t be detected by humans senses, and a “rapid displacement of oxygen by nitrogen gas can result in loss of consciousness without warning.”

The waiver mandates that the spiritual advisor stay at least three feet away from the gas mask or “any outflow of breathing gases discharging from the system,” and indicates a small risk to the spiritual advisor if positioned within a shorter distance.

“In the unlikely event that the hose supplying breathing gas to the mask were to detach, an area of free-flowing nitrogen gas could result, creating a small risk (approximately two feet from the outflow),” the waiver states.

Hood called the waiver a “tyranny of vagueness.”

“When I look at this waiver, it talks about nitrogen, it gives all of these broad statements about what nitrogen is what a nitrogen execution looks like,” Hood said. “But of course, the problem is, is that they’re telling me what nitrogen is and what a nitrogen execution looks like. and they don’t know what a nitrogen execution looks like, because the protocol is consistently being revised. So they’re asking me to sign a waiver for something that they themselves don’t even have figured out yet.”

Hood said he has concerns about the distance requirement of where he can position himself inside the chamber as it pertains to gas equipment. He said he is also unaware of ADOC’s protocol in the event that gas gets into the chamber and causes him to have a medical incident.

“You asked me to sign a waiver saying that this is dangerous, it’s even possibly lethal, and then you don’t give any sort of explanation about what happens in the event of an emergency,” he said.

Alison Mollman, interim legal director of the ACLU of Alabama, spoke to the Alabama Joint Legislative Prison Committee during its Dec. 13 meeting about the dangers of nitrogen gas.

She referenced a Jan. 2021 incident in a which a gas leak filled the freezer room of the Foundation Food Group plant in Gainesville, Ga. Five of its employees entered the room and immediately suffocated and died. Another employee later died at a hospital.

“Every year, the United States Chemical Safety Board has cited an average of eight deaths and five serious injuries from nitrogen exposure,” Mollman said. “And what all of those other organizations and workplaces have by way of oversight, the (Alabama) Department of Corrections has none. In fact, there is no regulatory agency. No regulatory agency is overseeing the use and storage of nitrogen at Holman Correctional Facility.”

Hood said in a state that values religious liberty, ADOC does not define what religious liberty looks like in executions. He spoke of the importance of the spiritual advisor being close to, and often touching, the person being executed as they take their final breath.

“Why is it important for your minister to touch you when you are baptized? Why is it important for your minister to serve you communion? Why is it important for your minister to be able to touch you at your time of death?” Hood said. “Kenny comes from a tradition in which laying of hands is a means by which a deeply spiritual moment happens. I don’t think that it’s it’s our place to question the value of certain religious exercises. I think it is our place as a free society to protect them.”

In March 2022, the U.S. Supreme Court ruled in favor of death row inmate John Ramirez, allowing his spiritual advisor the right to pray aloud and touch him in the execution chamber. Ultimately, Ramirez was executed in October 2022 with his spiritual advisor laying hands on him as he died.

ADOC’s gas execution protocol is currently being challenged in court.

A spokesperson for ADOC declined CNHI’s request for comment due to pending litigation.

Death Penalty Action, which hosted the media call Dec. 14 during which Hood spoke, has launched several petitions related to Alabama executions.

More than 12,000 online signatures have been gained on its petition opposing gas chamber executions in the U.S. Arizona refurbished its gas chamber in 2020, and has not performed a gas execution since 1999. Oklahoma authorized gas executions in the state in 2015 and has been developing its protocol since.

Death Penalty Action also has online petitions to stop Smith’s execution, and for ADOC to adopt a policy for media and witnesses to observe executions from the moment the prisoner enters the chamber, as opposed to when the prisoner is already strapped to a gurney or chair.