BIRMINGHAM, Ala. (WIAT) — A lawyer representing the State of Alabama told a federal court Wednesday that execution by nitrogen suffocation is not practical at this time.

In a hearing regarding the scheduled Oct. 21 execution of Willie B. Smith, Eleventh Circuit Court of Appeals Judge Charles R. Wilson asked Edmund LaCour, a lawyer for the state, whether Alabama could currently carry out executions by what he termed “nitrogen hypoxia”, or execution through the use of nitrogen suffocation.

An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States. Execution through the use of nitrogen suffocation was approved by the Alabama Legislature in 2018, however, joining Oklahoma and Mississippi as the only other states to allow the practice.

“Is the State of Alabama able to execute Alabama death row inmates by nitrogen hypoxia?” Wilson asked in Wednesday’s virtual hearing.

“At the moment?” LaCour responded. “We do not have a functioning nitrogen hypoxia protocol at the moment. The only practically available method — the only method we’ve used in the last several years — is lethal injection.”

The questioning then turned to the specific case of Willie B. Smith, who is asking the federal court to vacate a ruling that dismissed claims that prison officials violated his rights under the Americans with Disabilities Act. Smith has an IQ of around 70, according to experts. He claims that he was not provided a reasonable accommodation to understand that he was required to opt into death by nitrogen suffocation during a specific 30-day period.

“Well Mr. Smith is scheduled to be executed on, I believe it’s October the 21st,” Wilson said.

“Yes, 30 years after he murdered Ms. Sharma Ruth Johnson, and he’s scheduled to be executed by lethal injection as provided by the statute,” LaCour responded.

Judge Wilson’s replied without pause: “What if he had filled out the form within the 30-day opt-in window?”

“Then he would’ve opted for nitrogen hypoxia and, by statute, he would be slotted for nitrogen hypoxia execution, which would not be this week because it is not ready within the next eight days.”

Barring further court action, Willie B. Smith will be executed on Thursday, Oct. 21.