12 January 2024 :
January 10, 2024 - Alabama. Federal judge rules Alabama’s nitrogen execution of Kenneth Smith can go forward
Kenneth Eugene Smith is set to die by suffocation of nitrogen gas sometime between 2 a.m. on Thursday, January 25, and 6 a.m. on Friday, January 26. He would be the 1st inmate anywhere to die in an execution using the gas.
U.S. District Judge Austin Huffaker Jr. ordered on Wednesday that some of Smith’s claims in his lawsuit can move forward, but denied Smith’s request for a preliminary injunction in the case to halt the execution.
The judge found that “there is simply not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially likely to cause Smith superadded pain.”
Smith was twice convicted by juries for the murder-for-hire of Elizabeth Dorlene Sennett in her home in Colbert County in north Alabama in 1988. Sennett, a pastor’s wife, was beaten and stabbed repeatedly. Smith, who was hired by the victim’s husband to commit the slaying, confessed to his role in the crime and has been on death row since 1996.
Following the judge’s decision, Alabama Attorney General Steve Marshall issued a statement.”With today’s order, Alabama is an important step closer to holding Kenneth Smith accountable for the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” said Marshall.
”Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done.”
In August, the Alabama Department of Corrections released a redacted version of its protocol for the new method. It revealed that an inmate would inhale the gas through a tightly fitted gas mask.
But that protocol features, as Huffaker wrote in his Wednesday order, the state’s “familiar veil of secrecy over its capital punishment procedures.”
The state had asked the judge to dismiss Smith’s lawsuit, which focuses on how the nitrogen protocol could expose him to severe pain and hasn’t been tested. It’s a lawsuit that comes after Alabama tried to execute Smith in 2022, but failed after prison officials couldn’t finish setting up the intravenous lines used for the lethal injection before time expired on the death warrant.
Following that execution attempt, Smith sought to block a second attempt to execute him by lethal injection, alleging it would subject him to cruel and unusual punishment. Smith claimed he was strapped to a gurney and poked with needles for several hours during the unsuccessful attempt to tap his veins.
Huffaker wrote on Wednesday, “It is not lost on the court that Smith vehemently argued for execution by nitrogen hypoxia in his previous litigation only several months ago when he was scheduled for execution by lethal injection. He likely did so under the belief that the ADOC was nowhere near finalizing and issuing a final nitrogen hypoxia protocol, thereby placing Smith, like any condemned inmate subject to a nitrogen hypoxia execution, in an indefinite holding pattern while other lethal injection executions went forward.”
“Now that Alabama is prepared to carry out his sentence using the method of execution he has consistently declared he prefers, the circumstances have changed. And what was once highly unlikely is now a certainty.”
Smith’s lawyers are challenging several parts of the state’s protocol, including the fit of the gas mask that will be used, the seal that could dislodge, and the lack of monitoring pulse oximeters. He suggested several changes to the protocol, or suggested carrying out his execution by firing squad.
“It goes without saying that many capital cases come to the federal court system with the primary or sole aim of delaying execution indefinitely. And inherent in many if not every capital case is the condemned inmate’s goal to altogether avoid his death sentence. It is human,” wrote the judge.
