In a significant development, the U.S. Supreme Court and a federal appeals court have both declined to intervene in the case of Alabama's first-ever execution by nitrogen gas. The state plans to use this novel method to execute Kenneth Smith, who was convicted of a murder in 1988. This decision comes after the state's previous attempt to execute Smith by lethal injection was botched in November 2022.

Smith's lawyers had appealed to the state court, arguing that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishment. However, the court's order did not provide an explanation or any dissents. Following this, a federal appeals court also rejected a separate challenge by Smith's lawyers, with one of the three judges dissenting.

Smith's lawyers have stated that they will appeal this case to the Supreme Court, potentially giving the justices another opportunity to intervene. However, the Supreme Court has been hesitant to intervene in last-minute death penalty appeals in recent years.

The use of nitrogen gas in executions is not unprecedented, as it has been used in assisted suicide in Europe and elsewhere. Alabama's lawyers argue that the method, known as nitrogen hypoxia, is painless and will quickly cause Smith to lose consciousness before he dies. However, Smith and his lawyers express concerns about the state's newly created protocol, fearing that it may not be sufficient to prevent problems that could result in severe suffering.

The execution is scheduled to take place at the William C. Holman Correctional Facility in Atmore, Alabama, around 6 p.m. Central time. However, it could be carried out any time until 6 a.m. the next morning. Smith has reported feeling increasingly nauseous as his anxiety grows about the impending execution, leading his lawyers to worry about potential mishaps during the procedure.

Alabama prison officials have announced that Smith will not be allowed to have any food after 10 a.m. on Thursday in an effort to reduce the likelihood of vomiting. The use of nitrogen gas as an execution method has gained attention due to the difficulties states face in obtaining the necessary drugs for lethal injections.

This decision by the Supreme Court and federal appeals court sets a precedent for Alabama and other states considering alternative execution methods as they grapple with challenges in obtaining lethal injection drugs. It remains to be seen whether Smith's lawyers will be successful in their appeal to the Supreme Court, which could potentially halt the execution.