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Supreme Court denies death row inmate's stay of execution request

Kenneth Eugene Smith is now awaiting an appeals court's decision to determine if he will be become the first person executed by nitrogen gas.
Inmate Kenneth Eugene Smith is pictured.
Posted at 4:26 PM, Jan 24, 2024

The Supreme Court has denied an Alabama death row inmate's last-minute request for it to block his upcoming execution by nitrogen gas.

This settles one of Kenneth Eugene Smith's two legal efforts aiming to halt his execution by way of nitrogen hypoxia, with the 58-year-old now awaiting a decision from the 11th U.S. Circuit Court of Appeals to determine whether the state can go through with his scheduled execution Thursday.

Smith and his lawyers have argued that the proposed method, which consists of a respirator-type mask being put on his face to replace his breathing air with pure nitrogen, is too risky and cruel to carry out, as it could cause Smith to choke on his own vomit or experience a prolonged and painful death.

The Court rejected his point that it would also be unconstitutional for the state to attempt after it failed to complete his first execution by lethal injection in 2022.  

Now the appeals court is weighing Smith's appeal of a federal judge's Jan. 10 decision to let the execution go forward. Whatever the court decides, it is expected to be appealed to the U.S. Supreme Court.

Smith's lawyers have argued Alabama is trying to make their client a test subject for the execution method, as no state that has authorized its use — Alabama, Oklahoma and Mississippi — has previously attempted it.

United Nations experts seemed to align with this point, saying they were "alarmed" at the prospect of using the "untested" nitrogen gas method and comparing it to "even torture."

UN raises alarms over US using nitrogen hypoxia in Alabama execution
The symbol of the United Nations at United Nations Headquarters.

UN raises alarms over US using nitrogen hypoxia in Alabama execution

Kenneth Eugene Smith, found guilty in the 1988 murder-for-hire case of Elizabeth Sennett, has been on death row for over 30 years.


This comes as some states are looking for new execution methods as the most common one, death by lethal injection, is becoming increasingly difficult to carry out due to a lack of the necessary drugs. If Smith is executed by nitrogen hypoxia, this would be the first execution by way of a new method since lethal injections were first used in 1982.

The Alabama attorney general's office has urged the court to allow the execution to proceed as planned, with Alabama Solicitor General Edmund LaCour telling judges it's the "most painless and humane method of execution known to man." The state has argued the gas will knock him unconscious within seconds and cause death within minutes.

But Smith's lawyers and other critics have emphasized the unknown problems that could arise and whether it's a violation of the constitutional ban on cruel and unusual punishment, as they say they can't predict how Smith will react once the nitrogen gas is switched on.

Specifically, Smith's attorney, Robert Grass, has argued oxygen could leak into the mask delivering the nitrogen, potentially prolonging the execution or leaving him in a vegetative state instead of killing him by depriving him of oxygen. 

In regards to that point and the question of what would happen if Smith began to vomit, LaCour said the scenarios were unlikely to happen, and if he did begin to vomit, the state would not halt the execution because the nitrogen gas flow rendering him unconscious would be "almost instantaneous."

Smith is one of two men convicted in the 1988 murder of Elizabeth Sennett, who was found stabbed to death in her home.

Prosecutors said Smith and man were paid $1,000 to kill the preacher's wife on behalf of her husband, who was deeply in debt and wanted to collect on the insurance. The preacher killed himself when investigators introduced him as a suspect, and the other convicted murder-for-hire killer was executed in 2010.

Smith's first execution attempt took place in 2022, but it was called off before the lethal injection drugs were administered after authorities were unable to connect the two required intravenous lines to his veins. His lawyers said he was strapped to a gurney for nearly four hours during that attempt, and they argued his survival then meant the state's second execution was a violation of the constitutional cruel and unusual punishment ban.

Additional reporting by The Associated Press.