Ralph Chapoco, Alabama Reflector
January 25, 2024
The U.S. Supreme Court Thursday denied Alabama death row inmate Kenneth Eugene Smith’s final appeal, allowing his execution by nitrogen gas to proceed.
The appeal was rejected by the majority of the justices without comment. The court’s three liberal justices all dissented. In one, Justice Sonia Sotomayor wrote that Alabama was using a novel method of execution and had already botched an earlier execution.
“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” Sotomayor wrote. “The world is watching.”
Nitrogen gas has never before been used as a method of executing a human being.
A jury in 1996 convicted Smith, 58, of the 1988 murder-for-hire of Elizabeth Sennett of Colbert County. The state attempted to kill Smith by lethal injection in November 2022, but the execution was called off after Department of Corrections staff failed to establish a second intravenous line needed to administer the lethal drugs.
Smith’s attorneys said the experience, involving multiple punctures, gave him post-traumatic stress disorder.
They challenged the execution on several grounds. The Supreme Court Wednesday rejected an argument that attempting to execute him twice violated Smith’s Eighth Amendment protections against cruel and unusual punishment. But other legal challenges were still pending Thursday evening.
Attorneys for Smith challenged the protocol DOC plans to use in the execution. According to the protocol, a mask will be placed over Smith’s face. He will then be exposed to nitrogen gas for 15 minutes or until an electrocardiogram shows him flatlining.
Smith’s lawyers said the mask could slip, introducing oxygen, which could make him vomit, asphyxiate or prolong his death. The American Veterinary Medical Association discourages the use of nitrogen in euthanizing animals, in part because of the difficulties of keeping oxygen low. Smith’s attorneys said his PTSD could make that more likely.
Justice Elena Kagan, in a dissent joined by Justice Kentanji Brown Jackson, cited those concerns.
“The State’s protocol was developed only recently, and is even now under revision to prevent Smith from choking on his own vomit,” Kagan wrote. “The State has declined to provide Smith with all the discovery respecting its protocol which he has requested. And Smith has a well-documented medical condition posing special risks from the State’s newly chosen method of execution.”
The attorneys also said that Smith’s due process rights were violated because the state planned to put him to death ahead of other inmates who chose execution by nitrogen in 2018 and who had exhausted their appeals. They also argued the mask would make it impossible for him to pray aloud during the execution.
The Alabama attorney general’s office, representing the Department of Corrections, has argued that steps have been taken to ensure a secure flow of nitrogen, and that the harms alleged by Smith were theoretical.
Smith’s appeals have been repeatedly rebuffed by the courts in the past few weeks. U.S. District Judge R. Austin Huffaker Jr. on Jan. 10 allowed the execution to proceed, ruling that Smith did prove that a stay of execution was warranted.
From there his attorneys appealed the decision to the 11th Circuit Court of Appeals. A divided three-judge panel upheld Huffaker’s ruling in an unsigned opinion on Wednesday, but two of the judges expressed concerns that the execution could become cruel.
The state will attempt to execute Smith Thursday evening.
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