by Ralph Chapoco, Alabama Reflector
November 2, 2023
Alabama is one step closer to becoming the first state to execute someone by nitrogen hypoxia.
In a 6-2 decision handed down Wednesday, the Alabama Supreme Court allowed the state to proceed with the execution of Kenneth Eugene Smith, convicted of the 1988 murder of Elizabeth Sennett, under that method.
Alabama Attorney General Steve Marshall said in a statement Wednesday that Sennett’s family had “waited an unconscionable 35 years to see justice served.”
“Though the wait has been far too long, I am grateful that our talented capital litigators have nearly gotten this case to the finish line,” the statement said.
Chief Justice Tom Parker and Associate Justice Greg Cook dissented but gave no additional comment. Nitrogen hypoxia has never been used on a human being as a means of execution, and professional veterinary associations have discouraged its use in the euthanization of animals.
Smith’s attorneys said in a statement Thursday that they were disappointed in the decision and would continue to work through the judicial process. Smith currently has an appeal pending with the Alabama Court of Criminal Appeals claiming that attempting to execute him a second time violates his constitutional rights.
“It is noteworthy that two justices dissented from this Order,” wrote Robert Grass, an attorney for Smith. “Like the eleven jurors who did not believe Mr. Smith should be executed, we remain hopeful that those who review this case will see that a second attempt to execute Mr. Smith – this time with an experimental, never-before-used method and with a protocol that has never been fully disclosed to him or his counsel – is unwarranted and unjust.”
The order gives the Alabama Department of Corrections the authority to carry out Smith’s execution within the time frame set by Gov. Kay Ivey, which cannot happen less than 30 days from Wednesday, when the court published its decision.
The Attorney General’s Office filed a motion with the Alabama Supreme Court in August, requesting the court set a date for Smith’s execution.
Smith’s attorneys requested in September that the court reject the state’s motion, stating that nitrogen hypoxia has not been tested and only recently released the protocol for using that method of execution.
A jury convicted Smith in 1996 in the plot to murder Sennett and voted to sentence him to life without the possibility of parole. The judge in the case overrode the jury recommendation and sentenced Smith to death. Alabama abolished judicial override in 2017, the last state in the country to do so. But the rule was not made retroactive.
In May the U.S. Supreme Court upheld a lower court’s decision that allowed Smith to select his method of execution, in this case is death by nitrogen hypoxia. The high court turned down the appeal by the Alabama Department of Corrections, which argued that Smith was pursuing a delaying tactic.
Smith was scheduled to be executed in November following the botched executions of Joe Nathan James Jr. and Alan Miller. However, his execution was called off after state corrections staff repeatedly failed to secure a vein to carry out the execution.
Smith’s attorneys wrote in a brief last January that he “continues to experience physical and emotional pain, including lingering pain in his arm, near his collarbone, back spasms, difficulty sleeping, and likely post-traumatic stress disorder” from the failed execution.
Death through nitrogen hypoxia became an available method for executing people on death row after the Legislature passed a bill sponsored by Sen. Trip Pittman, R-Montrose, allowing its use. He said that the method was more humane than lethal injection.
Doctors and medical ethicists have criticized those claims.
“Last year, after Alabama tortured multiple people in botched executions using lethal injection, we encouraged the state to pursue an independent evaluation of its execution protocols,” said Alison Mollman, interim legal director of the ACLU of Alabama. “Governor Ivey and the Alabama Department of Corrections failed to complete an independent review and instead insisted the problem was not having enough time to kill someone. Now, at the urging of Attorney General Steve Marshall, Alabama is rushing to put a man to death with an untested, unproven, and never-before-used method of execution. As Alabama races to experiment on incarcerated people with nitrogen gas, they put the lives of correctional staff, spiritual advisers, the media, and victims at risk by potentially exposing them to an odorless and lethal gas. Using this method has no benefit on public safety. Governor Ivey and Attorney General Marshall have a responsibility to stop the execution of Mr. Smith.”
The Death Penalty Information Center, a nonprofit that students and collects data on the death penalty, criticized Alabama’s move toward nitrogen executions in a statement on Thursday.
“No state has ever used nitrogen in an execution, and there are still too many unanswered questions for Alabama officials to responsibly move forward with this protocol,” the statement said. “Mr. Smith has already endured one botched execution; he should not now face another attempt that carries this much risk and uncertainty.”
Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Contact Editor Brian Lyman for questions: info@alabamareflector.com. Follow Alabama Reflector on Facebook and Twitter.
