BIRMINGHAM, Ala. (WIAT) — On Monday, the U.S. Supreme Court sided with an Alabama death row inmate, allowing a lawsuit from him to proceed over his choice to use nitrogen gas instead of lethal injection to be executed.

Kenneth Eugene Smith, who has been on death row since being convicted in the killing of Elizabeth Sennett in a murder-for-hire plot in 1988, was originally set to be executed last November, but the execution was halted after technicians were unable to find a vein to access for a lethal injection, running out of time to carry out the procedure.

Since before his execution, Smith’s attorneys had pressed for him to be put to death using nitrogen hypoxia, citing an Eighth Amendment challenge dealing with cruel and unusual punishment. In the hours before he was set to be put to death, the U.S. 11th Circuit Court had issued a stay of execution, which the Supreme Court overturned. However, the fact that Smith was never executed put his lawsuit as pending in court.

Alabama recently brought the case to the Supreme Court to decide whether they could reverse the 11th Circuit’s decision, allowing them to use lethal injection instead of nitrogen hypoxia. The Supreme Court ultimately did not take up the case, allowing Smith’s lawsuit to continue on.

Supreme Court Justices Clarence Thomas and Samuel Alito were the only two dissenting voices in the case.

“When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future,” Thomas and Alito wrote in their dissent. “Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.”

While nitrogen hypoxia has been a legal alternative form of execution since 2018, Alabama has yet to perform an execution using it. In fact, Alabama Department of Corrections Commissioner John Hamm previously stated in a brief last September that the state was not ready to execute anyone by nitrogen hypoxia. In February, Hamm said a protocol for nitrogen gas could be completed by the end of the year.

Other death row inmates, such as Alan Miller, have also requested nitrogen hypoxia for their executions.

Following a number of botched executions last year, Gov. Kay Ivey put a halt to all executions in order to review protocols and procedures. Ivey has since allowed executions to continue, with the next one set after June 2 for James Barber.

No date has been set for Smith’s execution.