ATMORE (Alabama): The U.S. Supreme Court ruled Thursday that Alabama can proceed with using nitrogen gas to put a man to death, refusing to block what would be the nation’s first execution by a new method since 1982. The state says it will be humane, but critics call it cruel and experimental.
The decision clears the way for the execution of Kenneth Eugene Smith — a 58-year-old convicted killer whose 2022 lethal injection was called off at the last minute because authorities couldn't connect an IV line — this time by using nitrogen gas.
Smith’s attorneys had waged an unsuccessful legal battle, arguing that Alabama was trying to make him the test subject for an experimental method.
Supreme Court Justice Sonia Sotomayor, who along with two other liberal justices dissented, wrote: “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. The world is watching.”
The majority justices did not issue any statements.
Smith is scheduled to be executed at a south Alabama prison. Officials intend to put a respirator mask over his face and replace the air he is breathing with pure nitrogen gas, causing him to die from lack of oxygen. It will be the first use of a new execution method since the introduction four decades ago of lethal injection, now the most commonly used one in the United States.
“The eyes of the world are on this impending moral apocalypse. Our prayer is that people will not turn their heads. We simply cannot normalize the suffocation of each other,” Smith and the Rev. Jeff Hood, Smith’s spiritual adviser, said in a statement Thursday.
The state has predicted the nitrogen gas will cause unconsciousness within seconds and death within minutes. A state attorney told the 11th Circuit Court of Appeals that it will be “the most painless and humane method of execution known to man.” But some doctors and organizations have raised alarm about the state’s plan.
Smith's attorneys asked the U.S. Supreme Court to halt the execution to review claims that the new method violates the constitutional ban on cruel and unusual punishment and deserves more legal scrutiny before it is used on a person.
“There is little research regarding death by nitrogen hypoxia. When the State is considering using a novel form of execution that has never been attempted anywhere, the public has an interest in ensuring the State has researched the method adequately and established procedures to minimize the pain and suffering of the condemned person,” Smith's attorneys wrote.
In her dissent, Sotomayor wrote that Alabama has shrouded its execution protocol in secrecy, releasing only a heavily redacted version. She also said Smith should be allowed to obtain evidence about the execution protocol and to proceed with his legal challenge.
“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,” Sotomayor wrote.
“Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” Sotomayor wrote. “I sincerely hope that he is not proven correct a second time.”
Justice Elena Kagan wrote a separate dissent and was joined by Justice Ketanji Brown Jackson.
In the hours ahead of the scheduled execution, Smith met with family members and his spiritual adviser, according to a prison spokesperson.
He ate a final meal of T-bone steak, hash browns, toast and eggs slathered in A1 steak sauce, Hood said by telephone.
“He’s terrified at the torture that could come. But he’s also at peace. One of the things he told me is he is finally getting out,” Hood said.
Smith is one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett. Prosecutors said he and the other man were each paid $1,000 to kill Sennett on behalf of her pastor husband, who was deeply in debt and wanted to collect on insurance.
Alabama Attorney General Steve Marshall expressed confidence Wednesday that the execution would be allowed to proceed.
“My office stands ready to carry on the fight for Liz Sennett. 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,” Marshall said.
The victim’s son, Charles Sennett Jr., said in an interview with WAAY-TV that Smith “has to pay for what he’s done.”
“And some of these people out there say, ‘Well, he doesn’t need to suffer like that.’ Well, he didn’t ask Mama how to suffer?” the son said. “They just did it. They stabbed her — multiple times.”
Smith is to be strapped to a gurney in the execution chamber — the same one where he was strapped down for several hours during the lethal injection attempt — and a “full facepiece supplied air respirator” will be placed over his face. After he is given a chance to make a final statement, the warden, from another room, will activate the nitrogen gas. It will be administered through the mask for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.
The state has until 6 a.m. Friday to carry out the execution.
Sant’Egidio Community, a Vatican-affiliated Catholic charity based in Rome, urged Alabama not to go through with the execution, saying the method is “barbarous” and “uncivilized” and would bring “indelible shame” to the state. And experts appointed by the U.N. Human Rights Council cautioned they believe the execution method could violate the prohibition on torture.
Some states are looking for new ways to execute people because the drugs used in lethal injections have become difficult to find. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but no state has attempted to use the untested method until now.
Much of what is known about death by nitrogen gas comes from industrial accidents or suicide attempts. Dr. Philip Nitschke, a euthanasia expert who designed a suicide pod using nitrogen gas and appeared as an expert witness for Smith, said nitrogen can provide a peaceful, hypoxic death, but said he has concerns about Alabama’s proposal to use a mask.
Nitschke told The Associated Press that Smith's facial hair, jaw movements and involuntary movements as he feels the effect of the nitrogen could impact the seal. If there are leaks, Smith could continue to draw in enough oxygen, “to prolong into what could be a very rather macabre, slow process of slowly not getting enough oxygen,” Nitschke said. He said he could envision scenarios where the execution goes quickly or seriously awry.
Smith's attorneys have raised concerns that Smith could choke to death on his own vomit as the nitrogen gas flows. The state made a last-minute change to procedures to say he will not be allowed food in the eight hours leading up to the execution.
Sennett, 45, was found dead March 18, 1988, in her home with eight stab wounds in the chest and one on each side of her neck, according to the coroner. Her husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents. John Forrest Parker, the other man convicted in the slaying, was executed in 2010.