Montgomery, Ala. — A divided Alabama Supreme Court on Wednesday said the state can execute an inmate with nitrogen gas, a method that hasn't been used carry out a death sentence.The all-Republican court in a 6-2 decision granted the state attorney general's request for an execution warrant for Kenneth Eugene Smith. The order did not specify the execution method, but the Alabama attorney general indicated in filings with the court that it intends to use nitrogen to put Smith to death.
Lawyers for Smith had urged the court to reject the execution request. 'The state seeks to make Mr. Smith the test subject for the first ever attempted execution by an untested and only recently released protocol for executing condemned people by the novel method of nitrogen hypoxia,' Smith's attorneys wrote in a September court filing.