Lawyers for Kenneth Eugene Smith plan to appeal a district judge’s order authorizing the state to proceed with its first nitrogen gas execution.
In a Jan. 10 48-page order, U.S. District Court Judge Austin Huffaker Jr. of the northern division of Alabama’s middle district, denied Smith’s request for a preliminary injunction for his second execution attempt.
Smith — who was sentenced to death by a jury in an 11-1 vote in 1996 for a 1988 murder — was set to be executed on Nov. 17, 2022, but after Alabama Department of Corrections staff spent an hour trying to set IV lines for the lethal injection drugs, his execution was halted. He subsequently elected to be executed by gas to avoid another lethal injection attempt but argues — as he did with the lethal injection method — that the untested gas execution method would violate the Eighth Amendment against cruel and unusual punishment.
Huffaker was tasked with determining if ADOC’s new nitrogen hypoxia protocol inflicts cruel and unusual punishment in violation of the Eighth Amendment.
Huffaker said in his order that Smith’s evidence amounts to speculation, and that Smith is “not guaranteed a painless death.” He said lack of evidence and uncertainty in new execution methods isn’t “novel” and has often been decided in courts.
He referenced a 2016 Oklahoma case in which the U.S. Supreme Court authorized the state to begin using a new three-drug lethal injection protocol after having issues obtaining previously used drugs.
“The fact that little or no evidence and scientific proof on the topic existed did not relieve the condemned petitioner of their burden of ‘showing that the method creates an unacceptable risk of pain,’” Huffaker said. “…After all, although lethal injection is currently the most common form of execution in the present day in this country, it was once novel.”
The nitrogen gas execution method was authorized by state officials in 2018 as an alternative to the primary lethal injection method. It has yet to be used as the state just finished finalizing its protocol for the method in late 2023 in response to Smith’s request for the alternate method.
Smith’s lawsuit argued that the lack of specific details of the mask placement and potential adverse affects by causing nitrogen to escape the mask or oxygen to enter.
During a December hearing, some expert witnesses testified that issues with gaps in the mask or even vomiting in the mask during the procedure could cause extreme suffering.
Smith asserts that the state’s intention to execute him by nitrogen hypoxia under its current protocol would expose him to a “severe risk of a persistent vegetative state, a stroke, or the painful sensation of suffocation, i.e., superadded pain.”
“It is clear that the consequences of attempting an execution by nitrogen hypoxia using ADOC’s deficient Protocol will be dire. If not performed correctly, execution by nitrogen hypoxia can result in another failed execution that risks leaving Mr. Smith with permanent injuries,” his attorneys stated in court filings.
The state’s witnesses argued that mishaps related to the mask would be rare and unlikely.
“On this record, 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 short of death or a prolonged death,” Huffaker said. “It could, in a highly theoretical sense, but only if a cascade of unlikely events occurs. Or it may well be painless and quick.”
Smith also argued that having the gas mask on in the execution chamber would violate his religious liberties by restricting him from audibly praying.
Court documents indicate that six assistant attorneys general who were videoed wearing the masks in the execution chamber while also breathing and speaking were presented as the state’s witnesses.
Smith’s spiritual advisor, Jeff Hood, filed a lawsuit against ADOC over its restrictions in the gas chamber related to spiritual advisors.
Hood dropped the lawsuit after ADOC agreed to tweak the policy to allow Hood to pray, read a scripture, place anointing oil on Smith, and a Eucharist ceremony.
“Horror is an understatement,” Hood said after the Jan. 10 order. “The State of Alabama now has the permission of a federal court to suffocate its citizens. Let there be no doubt, we will resist such tyranny until we can resist no more. Kenny Smith is a child of God. The State of Alabama will never be able to suffocate that truth.”
Hood, however, still expresses concern about unknown protocol in the event that gas gets into the chamber and causes him to have a medical incident.
“I remain scared for my life,” Hood said.
Alabama Attorney General Steve Marshall lauded the Huffaker’s ruling.
“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,” Marshall said. “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.”
One of Smith’s attorneys, Robert Grass, said they plan to appeal to the 11th Circuit of the U.S. Court of Appeals.
Several petitions have circulated regarding Smith’s execution. One of them seeks to do away with untested nitrogen hypoxia protocol citing unknown safety concerns of the deadly gas and potential suffering that could occur as seen in the few cases of gas executions more than two decades ago.