Alabama has tried to kill Kenneth Eugene Smith before. Now that the U.S. Supreme Court has given its silent OK, executioners will have another chance on Thursday. This time, nitrogen gas was used.
As of Wednesday, none of the nine judges on the nation’s highest court were heard to disagree with the decision not to stop what will be the first execution of its kind using nitrogen hypoxia.
The court would not say why it allowed the killing to happen.
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“The application for stay of execution of death sentence presented to Justice Thomas and by him referred to the Court is denied,” the short order says. It says, “The petition for a writ of certiorari is denied.”
In order for Yellowhammer State’s plan to kill Smith to work, the death row inmate would have to breathe in nitrogen until his cells stopped getting enough oxygen and he died.
The Death Penalty Information Center says that Alabama will have the first system of its kind in August 2023. A Republican governor of the state, Kay Ivey, said that Smith would be the first person to experience nitrogen hypoxia in November 2023.
In 1988, the 58-year-old man was found guilty of killing the wife of a minister as part of a plan to kill for money. He was first given a life sentence by a jury. The judge then went against what the jury said and gave Smith the death penalty. Since 1996, he has been on death row for his part in the brutal beating and stabbing death of 45-year-old Elizabeth Sennett.
In November 2022, Alabama tried to put Smith to death for the first time. For almost two hours, the medical staff kept trying to find the right spot to connect the needed intravenous lines. The timer on the warrant to kill him finally ran out. The state went ahead with its plans to put Smith to death again, which led to a case.
As late as 2023, a federal appeals court put a hold on the second execution. However, earlier this month, a district court finally gave the ok.
In that order, U.S. District Judge Austin Huffaker said that Smith had asked for an alternative way of execution called nitrogen hypoxia, which showed how painful the failed fatal injection was.
Huffaker thought that the prisoner might have asked to be put to death this way just to put off his sentence while the state worked out the finishing details of how to do the execution by nitrogen hypoxia.
Huffaker said that after that was done, Smith changed his mind and said that way would not work either.
“Things have changed now that Alabama is ready to carry out his sentence using the method of execution he has consistently said he prefers,” the judge wrote. “And something very unlikely before is now certain to happen.” With that change, Smith is now trying to stop the Defendants from carrying out his death sentence using the Protocol, saying it adds too much pain and should be changed. He says the court should tell the Defendants to do this or execute him by firing squad, which is a “relatively uncommon and archaic” way.
Smith’s plea to the U.S. Supreme Court was turned down, and he wrote that the planned way of death was new and that it was unusual for the government to try to kill the same person twice.
Defense lawyers wrote, “For its second attempt, the State got permission from the Alabama Supreme Court to use nitrogen hypoxia, a new way to kill someone that has never been tried by any state or the federal government, using a newly released protocol that has not been tested.” States have failed at putting people to death before. But based on what we know and believe if Alabama goes ahead with its planned execution, it will be only the second time in U.S. history that a state has tried and failed to carry out a second execution.
People who are against the death sentence are marching tonight. At least some campaigners think that the talk about how the killing was an experiment is just a sideshow.
The mental torture of a second execution try is not being talked about in all the noise about nitrogen hypoxia, Death Penalty Action Executive Director Abraham Bonowitz said in a statement given to Law&Crime. That, and the fact that Kenny Smith could not be put to death even if he were tried today because his jury did not agree on his sentence, and in 2017 Alabama made jury bypasses illegal. The whole system for putting people to death in Alabama is broken, and you can’t trust it to work right.