MONTGOMERY, Ala. (AP) — Alabama will attempt to put an inmate to death with nitrogen gas on Thursday night.

Kenneth Eugene Smith, 58, a convicted killer whose 2022 lethal injection was canceled, is scheduled to be executed at a south Alabama prison.

Alabama plans to put an industrial-type respirator mask over Smith’s face and replace his breathing air with pure nitrogen gas, causing him to die from lack of oxygen.

Attorneys for Smith have waged a legal battle to halt the execution, arguing the state is seeking to make Smith the “test case” for the new execution method. 

The U.S. Supreme Court rejected Smith’s argument that it would be unconstitutional to make another attempt to execute him after the failed lethal injection. Late Wednesday, U.S. 11th Circuit Court of Appeals declined to halt the the execution, saying Smith has not supported claims the method violates a constitutional ban on cruel and unusual punishment. His attorneys are expected to appeal that decision to the U.S. Supreme Court.

Smith is one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett. Prosecutors said he and the other man were each paid $1,000 to kill Sennett on behalf of her husband, who was in debt and wanted to collect on insurance.

Alabama Attorney General Steve Marshall said he believes courts will allow the execution to proceed.

“My office stands ready to carry on the fight for Liz Sennett. Two courts have now rejected Smith’s claims. I remain confident that the Supreme Court will come down on the side of justice, and that Smith’s execution will be carried out,” Marshall said.

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