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Alabama ready to help other states with ‘humane’ nitrogen executions after gas caused inmate to ‘shake and writhe’

homesafetytechpros — Sat, 10 Feb 2024 18:45:42 +0000

Death Penalty

Alabama ready to help other states with ‘humane’ nitrogen executions after gas caused inmate to ‘shake and writhe’

January 30, 2024, 8:58 am CST

Alabama is ready to help other states carry out “humane” nitrogen gas executions after using it for the first time Thursday to kill inmate Kenneth Smith, the state’s attorney general has said. (Image from Shutterstock)

Alabama is ready to help other states carry out “humane” nitrogen gas executions after using it for the first time Thursday to kill inmate Kenneth Smith, the state’s attorney general has said.

Republican Alabama Attorney General Steve Marshall called the execution “humane” in a Jan. 25 press release, even though a report by a reporter from the Associated Press said Smith “began to shake and writhe violently, in thrashing spasms and seizure-like movements” after the execution began. The shaking continued for at least two minutes.

The U.N. Human Rights Office and the European Union criticized the execution method, USA Today reports.

In a press conference Friday, Marshall said Alabama stands ready to help other states with nitrogen hypoxia executions, Reuters reports.

“Alabama has done it, and now so can you,” he said.

Oklahoma and Mississippi have approved nitrogen gas executions, according to Reuters.

Marshall also indicated that 43 other Alabama inmates have sought nitrogen gas executions.

Smith was executed for his role in the 1988 murder-for-hire killing of Elizabeth Dorlene Sennett, a pastor’s wife. The pastor, who later killed himself, allegedly sought the murder to collect on an insurance policy.

Smith was initially scheduled for execution in November 2022, but executioners were unable to insert an intravenous line before the death warrant expired.

The U.S. Supreme Court had twice declined to stop the execution, in decisions Jan. 24 and 25, the New York Times reports.

On Jan. 24, the Supreme Court refused to block the execution based on the argument that the second try constituted cruel and unusual punishment.

On Jan. 25, the high court refused to act based on an argument that Alabama wasn’t ready to try the untested execution method, subjecting him to an unconstitutional risk of cruel and unusual punishment. The Supreme Court’s three liberal justices dissented.

“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,” Justice Sonia Sotomayor wrote in her dissent.

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Supreme Court doesn’t stop nation’s first execution using nitrogen gas

homesafetytechpros — Mon, 29 Jan 2024 21:59:11 +0000

U.S. Supreme Court

Supreme Court doesn’t stop nation’s first execution using nitrogen gas

By Debra Cassens Weiss

January 25, 2024, 10:26 am CST

The U.S. Supreme Court has declined to intervene in the execution of Kenneth Eugene Smith in one of two pending appeals. (Image from Shutterstock)

The U.S. Supreme Court on Wednesday refused to block the execution of a death row inmate who claims that he would be subjected to cruel and unusual punishment if Alabama tries to execute him again—this time using nitrogen hypoxia.

The Supreme Court declined to intervene in the execution of Kenneth Eugene Smith in one of two pending appeals. The Eighth Amendment argument before the high court was based on Alabama’s second attempt to kill the convicted murderer after executioners were unable to insert an intravenous line in November 2022, the New York Times reports here and here.

Smith’s lawyers say the experience caused trauma and post-traumatic stress disorder.

A second appeal claims that Alabama isn’t ready to try the untested nitrogen hypoxia execution method, and that the mask that it is using to deliver the nitrogen could let in oxygen, prolonging the death process, according to the New York Times.

Smith’s lawyers planned to take that issue to the Supreme Court after the 11th U.S. Circuit Court of Appeals at Atlanta denied his injunction request Wednesday.

Other publications covering the case, besides the New York Times, include Reuters, the Washington Post and Law Dork.

Smith’s execution was scheduled for Thursday evening. He was convicted for his role in the 1988 murder-for-hire killing of Elizabeth Dorlene Sennett, a pastor’s wife.

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Sotomayor issues warning over nitrogen hypoxia execution

homesafetytechpros — Fri, 26 Jan 2024 15:30:53 +0000

Left: Right: This undated photo provided by Alabama Department of Corrections shows inmate Kenneth Eugene Smith, who was convicted in a 1988 murder-for-hire slaying of a preacher’s wife. (Alabama Department of Corrections via AP). Right: Associate U.S. Supreme Court Justice Sonia Sotomayor poses for the official photo at the Supreme Court in Washington, D.C. on Oct. 7, 2022. (OLIVIER DOULIERY/AFP via Getty Images)

The U.S. Supreme Court did not intervene to stop the nation’s first execution by nitrogen hypoxia — a move that all three justices of the court’s liberal wing opposed.

“With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent,” wrote Justice Sonia Sotomayor in a dissent issued Thursday afternoon regarding the then-pending execution of Kenneth Eugene Smith. Smith, 58, was put to death Thursday night.

As Law&Crime previously reported, Smith has been on death row since 1996 for his role in a gory murder-for-hire plot that left a minister’s wife dead after a vicious beating and repeated stabbing inside her Alabama home in 1988. After years of legal wrangling and a failed execution attempt in November 2022, Smith died by capital punishment on Thursday night, after Justice Clarence Thomas rejected Smith’s final appeal in a two-sentence denial earlier that day.

“The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied,” the order said. “The petition for a writ of certiorari is denied.”

Sotomayor’s disdain for this rejection — and Alabama’s commitment to using nitrogen hypoxia to kill Smith — was apparent.

“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,” she wrote in her dissent. “The world is watching.”

Calling the nitrogen hypoxia method “untested” and noting that Alabama only released its “heavily redacted protocol under five months ago,” Sotomayor described the way Smith would experience his death in stark terms.

“What Smith knows is that he will be strapped to a gurney,” she wrote. “He will wear a nitrogen-supplying, off-the-rack mask for which the State has not fitted him or even tried on him. Once the nitrogen is flowing into the mask, his executioners will not intervene and will not remove the mask, even if Smith vomits into it and chokes on his own vomit.”

According to The Associated Press, Smith’s execution took around 22 minutes, and he was pronounced dead at 8:25 p.m. Smith was apparently conscious for several minutes, and The Associated Press described him as shaking and writhing on the gurney for at least two minutes, at times pulling against his restraints. His death by nitrogen hypoxia marked the first time that a new execution method was used since lethal injection was introduced in 1982.

Sotomayor said that Smith had valid legal challenges to the execution method, and admonished her fellow justices for “again” allowing Alabama to “‘experiment . . . with a human life,’ while depriving Smith of ‘meaningful discovery’ on meritorious constitutional claims.”

According to Sotomayor, allowing Smith to complete discovery into nitrogen hypoxia is valuable for future death row inmates, in addition to Smith.

“That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method,” she wrote.

In her dissent, Sotomayor appeared to mourn a version of the Supreme Court that she described as having relatively recently valued Eighth Amendment protections.

“Not long ago, this Court remarked that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be,”” she wrote (citations omitted). “This case shows how that protection can be all too fragile.”

Her colleagues on the bench, she said, have “ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” and recalled that he has already “survived to describe the intense fear and pain [he] experienced during Alabama’s tortuous attempts to execute [him].”

“This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit,” she continued. “I sincerely hope that he is not proven correct a second time.”

Justice Elena Kagan, joined by Justice Ketanji Brown Jackson, issued a separate dissent emphasizing the “novel” use of the nitrogen hypoxia method.

“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. She said that Alabama “declined to provide Smith with all the discovery respecting its protocol which he has requested,” and added that he “has a well-documented medical condition posing special risks” from the chosen method of execution.

Kagan wrote that in 2015, the Supreme Court set an “extremely demanding standard” for showing a potential violation of the Eighth Amendment protection against cruel and unusual punishment — specifically, someone seeking an alternative method of execution must show that serious pain is “sure of very likely” to occur.

“Arguably, that standard can work fairly only when more is capable of being known about an execution method,” Kagan wrote. “To allow this Court to address that important issue, I would also grant Smith’s application for a stay of execution.”

The first attempt to execute Smith via lethal injection in November 2022 failed after intravenous lines needed for the procedure could not be connected to him properly and the clock ran out on the warrant to execute him. The state moved ahead with plans to execute him again, but that prompted a lawsuit from Smith in which he requested death by nitrogen hypoxia, for which protocols were incomplete at that point.

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SCOTUS gives go-ahead for nitrogen gas execution in Alabama

homesafetytechpros — Wed, 24 Jan 2024 22:24:58 +0000

This undated photo provided by the Alabama Department of Corrections shows inmate Kenneth Eugene Smith, who was convicted in a 1988 murder-for-hire slaying of a preacher’s wife. (Alabama Department of Corrections via AP, File)

The state of Alabama has tried to kill Kenneth Eugene Smith before. Now, with the U.S. Supreme Court’s tacit approval, executioners will have their chance once again on Thursday. This time using nitrogen gas.

On Wednesday, with no recorded dissents, the nine justices on the nation’s highest court declined to pause what will be the first of its kind: an experimental execution enacted by nitrogen hypoxia.

The court declined to say why it allowed the execution to go forward.

“The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied,” the terse order reads. “The petition for a writ of certiorari is denied.”

The Yellowhammer State’s chosen method to kill Smith is supposed to work by the death row inmate inhaling nitrogen to the point that he does not receive enough oxygen to his tissues and eventually dies.

Alabama announced the first system of its kind in August 2023, according to the Death Penalty Information Center. State Gov. Kay Ivey, a Republican, announced that Smith would be the first person subject to nitrogen hypoxia in November 2023.

The 58-year-old was convicted of killing a reverend’s wife in a murder-for-hire plot in 1988. He was first sentenced to life in prison by jurors. Then, the trial judge overruled the jury and sentenced Smith to death. He has been on death row since 1996 and confessed to his role in the brutal beating and stabbing death of Elizabeth Sennett, 45.

Alabama initially tried to execute Smith in November 2022. For nearly two hours, medical executioners repeatedly tried to find the proper place to attach the intravenous lines needed. Eventually, the clock ran out on the warrant to execute him. The state moved ahead with plans to execute Smith again, which, in turn, prompted a lawsuit.

The second execution was paused by a federal appeals court in 2023 but a district court finally gave the go-ahead earlier this month.

In that order, U.S. District Judge Austin Huffaker noted that Smith himself requested execution by nitrogen hypoxia as an alternative method — highlighting the agony of the botched lethal injection.

Huffaker mused that the inmate asked to be executed this way simply because he was trying to delay his punishment as the state worked out its final protocols for death by nitrogen hypoxia.

Once that was done, Huffaker noted, Smith then changed course and argued that method would not be appropriate either.

“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,” the judge wrote. “And what was once highly unlikely is now a certainty. With that change, Smith now seeks to enjoin the Defendants from carrying out his death sentence using the Protocol, arguing it unconstitutionally superadds pain such that the court should order the Defendants to amend it or execute him by firing squad, a ‘relatively uncommon and archaic’ method.”

In his denied petition to the U.S. Supreme Court, Smith took note of the newness of the planned method of death — as well as the rare instance of a state trying to kill the same person twice.

“For its second attempt, the State obtained permission from the Alabama Supreme Court to employ nitrogen hypoxia — a novel method of execution that has never been attempted by any state or the federal government — using a recently-released and untested protocol,” defense attorneys wrote. “States have failed at executions before. But upon information and belief, if Alabama proceeds with its planned execution attempt, it will be only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt.”

Anti-death penalty advocates are protesting on Wednesday night. At least some activists believe the discourse surrounding the experimental nature of the execution is a bit of a sideshow.

“The discussion that is missing in all of this hubbub around nitrogen hypoxia is the mental torture of a second execution attempt,” Death Penalty Action Executive Director Abraham Bonowitz said in a statement provided to Law&Crime. “That, and the fact that if Kenny Smith were on trial today, he could not be sentenced to death at all because his jury was not unanimous regarding his sentence, and jury overrides were outlawed in Alabama in 2017. Alabama’s capital punishment system as a whole is broken and cannot be trusted to get it right.”

Brandi Buchman and Elura Nanos contributed to this report.

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