Alabama set to attempt untried nitrogen hypoxia execution
Alabama is on the verge of executing a person on death row by nitrogen suffocation, a method that has never been used on a human being.
Kenneth Eugene Smith, convicted of the 1988 murder-for-hire of Elizabeth Sennett, is scheduled to be executed sometime Thursday or early Friday under the new method.
Smith lost two separate appeals on Wednesday. The U.S. Supreme Court rejected an appeal from Smith’s attorneys that the inmate, who survived a botched execution in November 2022, could not be executed again without violating his Eighth Amendment protections against cruel and unusual punishment.
The U.S. 11th Circuit Court of Appeals Wednesday affirmed a lower court ruling allowing the execution to proceed. The divided three-judge panel ruled that the novel execution method would not violate his Eighth Amendment rights; that the Alabama Attorney General did not violate his due process rights by scheduling his execution and that the process would not violate his right to practice his religion.
Smith also failed to show a likelihood of success on his First Amendment claim that the protocol violates his right to practice his religion. The opinion was unsigned, but U.S. Circuit Judge Charles Wilson concurred with the court’s opinion but wrote that he had concerns the execution would rise to a “cruel and unusual execution.”
U.S. Circuit Judge Jill Pryor dissented, writing that Smith’s post-traumatic disorder from the botched execution would likely cause him to vomit as gas is administered.
“The cost, I fear, will be Mr. Smith’s human dignity, and ours,” Pryor wrote.
Under a protocol developed last year, Corrections personnel will place a mask on Smith’s face and expose him to nitrogen gas for 15 minutes or until a nearby EKG shows that his heart has stopped. The Alabama Legislature approved the method in 2018, with supporters arguing it would be a humane way to die.
But critics, including doctors and anesthesiologists, say there are major questions about the method and that it could lead to a drawn-out death. The American Veterinary Medical Association discourages the use of nitrogen gas when euthanizing animals, in part because of the difficulty in keeping oxygen levels low.
Smith was set for execution in November 2022, but the procedure was called off after officials were unable to find a vein.
Attorneys for Smith have challenged the execution on several grounds, arguing that a second attempt at an execution violates his Eighth Amendment protections in the U.S. Constitution, and that the DOC’s protocol is unconstitutional.
Smith’s defense team argues Smith, who did not choose to be executed by nitrogen hypoxia when the state allowed death row inmates to opt into it in 2018, is being executed ahead of death row inmates who chose the method and have exhausted their appeals. Smith has since said he wants to be executed through nitrogen hypoxia but doesn’t believe DOC’s protocol is proper, primarily because of the mask.
The attorneys argue that the mask is not tightly sealed and will allow oxygen to infiltrate the breathing space. The attorneys argue the process will also deprive him of oxygen, which could lead to nausea and cause him to vomit before he passes out and eventually dies.
The U.S. Supreme Court rejected Smith’s argument over being executed twice without comment on Wednesday. Members of a three-judge panel of the 11th Circuit appeared skeptical of the arguments of Smith’s attorneys at a hearing on Friday.
Murder for hire
Smith was convicted in 1996 of Sennett’s murder. According to court documents, Rev. Charles Sennett, Elizabeth Sennett’s husband who was a minister in the Church of Christ, hired Smith and two other individuals to kill his spouse Elizabeth Sennett to collect money on an insurance policy. Court records say Elizabeth Sennett welcomed Smith and another individual into her home, who then beat her and stabbed her eight times in the chest and once on each side of the neck.
Charles Sennett died by suicide a week after his wife’s death. Attempts to reach surviving members of Sennett’s family were unsuccessful.
Smith was convicted in 1996 for his role in the murder-for-hire plot of Sennett. The jury had recommended sentencing him to life without the possibility of parole, but the judge in the case overrode the recommendation and sentenced Smith to death.
In 2017, the Alabama Legislature abolished judicial override, but did not make the law retroactive, leaving Smith eligible for the death penalty.
John Forrest Parker, who was also convicted in Sennett’s death, was executed by lethal injection in 2010. Billy Gray Williams, the third defendant, was sentenced to life without parole. Williams died in prison in 2020, according to al.com.
A prison dorm at Alabama’s Holman Correctional Facility. (Alabama Reflector file photo) Alabama is one of three states — including Mississippi and Oklahoma — that allow executions by nitrogen, but it will be the first to attempt to carry one out.
Sen. Trip Pittman, R-Montrose, the sponsor of the bill, said he believed the method would be more humane and would also allow the state to get around difficulties in obtaining the chemicals needed for executions by lethal injection.
Doctors and anesthesiologists have been skeptical that the execution would be less painful than lethal injection. Dr. Joel Zivot, an anesthesiologist at Emory University Hospital in Atlanta whose researchfound evidence of pulmonary edema, a feeling of suffocation or drowning, in the bodies of those executed by lethal injection, told the Reflector last September that it was “death by asphyxiation.”
“This is choking someone to death with a gas,” he said. “Why anyone would think that would be something pleasant or painless is really beyond my understanding.”
The Montgomery Advertiser reported in 2019 that the previous year, death row inmates were only given days to choose their preferred method of execution.
Smith remained on death row since he was sentenced to death. In 2022, Alabama moved to have him executed using lethal injection, but failed. He was one of three executions that the Alabama Department of Corrections botched that year, including Joe Nathan James Jr. and Allan Miller.
The Alabama Department of Corrections finalized its nitrogen protocol last summer. The Alabama Attorney General’s Office in August 2023 sought an order from the Alabama Supreme Court to have Smith executed by nitrogen.
Alabama’s Supreme Court granted the order in November by a 6-2 decision.
Smith’s most recent arguments about the potential dangers, as well as an argument that the mask will not allow him to pray audibly during his execution, have been rejected by federal courts.
U.S. District Court Judge R. Austin Huffaker Jr. rejected an appeal from Smith on Jan. 10, ruling that his concerns were theoretical. The three-judge panel of the 11th Circuit upheld the ruling Wednesday. Smith may appeal that decision to the U.S. Supreme Court.
This article that originally appeared in the Alabama Reflector is taken from nonprofit news outlet Oklahoma Voice.