By Dakin Andone and Devan Cole | CNN
The US Supreme Court on Wednesday declined to halt the execution of Alabama death row inmate Kenneth Smith, who is scheduled to be put to death this week using nitrogen gas – a wholly new method some experts have decried as veiled in secrecy amid concerns it could lead to excessive pain or even torture.
Smith is due to be executed during a 30-hour window starting Thursday for his part in a 1988 murder for hire. The state 14 months ago aborted an effort to execute him by lethal injection because officials could not set an intravenous line before the execution warrant expired.
Smith and his attorneys last week asked the Supreme Court to pause the execution so they could argue trying to execute Smith a second time would amount to cruel and unusual punishment, violating the Eighth and 14th amendments.
On Wednesday, the justices declined Smith’s requests. They did not provide an explanation in their brief order, and there were no noted dissents.
Still, litigation continues ahead of Smith’s scheduled execution by nitrogen hypoxia, a method only Alabama, Oklahoma and Mississippi have approved and none has used; only Alabama has outlined a protocol for it, indicating officials plan to deliver the nitrogen to Smith through a mask.
Smith’s attorneys filed another separate request Wednesday for a stay of execution in the Eleventh Circuit Court of Appeals, saying Alabama altered its execution plans by changing the schedule for Smith to have his last meal.
That change was made, the attorneys said, in response to evidence that Smith “has been vomiting repeatedly” — one of several concerns previously raised by Smith and the state’s critics, who fear Smith could vomit into the mask, causing him to choke and raising the risk of a tortuous death.
“While there is no doubt that a stay of execution is the exception and not the rule, it is difficult to imagine a more exceptional case than one in which a State intends to…
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