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Court allows nitrogen gas execution to proceed

Judges for the U.S. 11th Circuit Court of Appeals ruled in a 2-1 decision to deny Smith’s appeal for a preliminary injunction.

Kenneth Eugene Smith

A federal appeals court denied Kenneth Eugene Smith’s petition to halt his execution paving the way for Alabama to execute Smith by nitrogen hypoxia on Thursday. The appeal to the U.S. Supreme Court also failed.

Judges for the U.S. 11th Circuit Court of Appeals ruled in a 2-1 decision to deny Smith’s appeal for a preliminary injunction in his planned execution. According to the court’s opinion, Smith’s appeal failed in part because Supreme Court precedent states that a new method of execution does not violate the Eighth Amendment standard of cruel or unusual punishment.

Despite concurring and voting to deny Smith’s petition Judge Charles Wilson wrote that he had several apprehensions including Smith potentially choking on his own vomit which could rise to cruel and unusual punishment. Smith argued the nitrogen gas could lead to him becoming nauseated and vomiting yet testimony from the Alabama Department of Corrections noted that if Smith did vomit the execution team would not step in potentially allowing Smith to asphyxiate on his own vomit.

“My first apprehension concerns what would occur if Smith were to vomit after nitrogen has been turned on, because ADOC has no protocol to handle this situation,” Wilson wrote. “Instead, Cynthia Stewart-Riley, the ADOC Regional Director, testified that the execution team will do nothing if this were to happen, which could lead Smith to asphyxiating. And expert testimony established that if Smith were to vomit once nitrogen is introduced, Smith faces a likelihood of asphyxiating on his own vomit.”

Judge Jill Pryor, the lone dissenter, stated that she did believe Smith demonstrated enough evidence to back his Eighth Amendment claim particularly that he is likely to die by asphyxiation from his own vomit. Pryor warned that if Smith did die this way then she feared the cost would be, “Mr. Smith’s human dignity and ours.”

Alabama Attorney General Steve Marshall celebrated the decision from the circuit court posting on X that he is confident the execution will be carried out Thursday.

“While Smith will likely appeal to the U.S. Supreme Court, my office stands ready to carry on the fight for Liz Sennett,” Marshall posted. “Two courts have now rejected Smith’s claims. I remain confident that the Supreme Court will come down on the side of justice, and that Smith’s execution will be carried out tomorrow.”

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Smith was convicted in 1996 for the murder for hire plot of Elizabeth Sennett which occurred in 1988. Despite the jury recommending a life sentence on a vote of 11-1 the judge overrode this decision and sentenced Smith to death. Alabama ended the practice of judicial override in 2017 yet Smith and other individuals on death row sentenced by this now defunct practice have not been given the opportunity to be tried again.

Smith also survived a botched execution via lethal injection in November 2022. Now, as the state tries to execute him again using a method never used before Smith and his legal team have stated he is being used as an experimental test subject.

Smith and his legal team are expected to appeal to the Supreme Court which also denied his request for a stay on Wednesday. Anti-death penalty advocates and human rights organizations have over the past several weeks in particular called on the execution to be halted. United Nations human rights experts warned that Alabama carrying out the execution by nitrogen hypoxia would violate the prohibition against torture or cruel and unusual punishment. 

As the state claims that the implementation of the new execution method will be humane and safe their actions seem to indicate the opposite. APR has been informed by sources that the witnesses for the execution, which includes journalists, will not be in the regular viewing room but instead will view the execution by a live stream from two trailers. The live stream will be on a closed feed controlled by ADOC the sources say. 

ADOC Commissioner Jon Hamm, according to the sources, will be in another room fixed with plexy glass that was cut up by incarcerated individuals.

However, Smith’s spiritual adviser, Dr. Jeff Hood will be in the execution chamber as the act is conducted. Hood was required to sign papers acknowledging the potential risk involved in being in the chamber for Smith’s execution. The documents warned that Smith’s mask could dislodge in a “highly unlikely event” leading to the gas dispersing in a dangerous zone of about two feet. 

Although innocent bystanders, including the executioners, could be endangered Alabama officials are steadfast about conducting Smith’s execution which is scheduled for 6 p.m. on Thursday.

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Patrick Darrington is a reporter at the Alabama Political Reporter. You can reach him at [email protected].

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