The US Supreme Court agreed Monday with an Alabama death row inmate who survived a botched lethal injection last year and wants to be put to death by nitrogen hypoxia – a method no state has previously tried to use.
Kenneth Eugene Smith, 57, was scheduled to be executed on Nov. 17, 2022, for the 1988 murder-for-hire slaying of a preacher’s wife.
But a divided 11th Circuit panel stayed the execution after Smith argued that lethal injection constituted cruel and unusual punishment under the Eighth Amendment and suggested he be killed via nitrogen hypoxia — death by breathing pure nitrogen — instead.
The Supreme Court disagreed and lifted the stay, but prison officials ended up calling off the execution after staff were unable to find a vein to connect the second of two lines to Smith’s body. The state’s death warrant has since expired and Smith’s lawsuit remains pending.
The Alabama attorney general’s office had asked the high court to review the 11th Circuit’s decision, arguing the appeals court ignored Supreme Court precedent that an inmate challenging an execution method must show that an alternative method is readily available, not just feasible.
Justices Clarence Thomas and Samuel Alito dissented, saying they wanted to hear the state’s case.
“The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction,” Thomas wrote at the time.
In November, Alabama Gov. Kay Ivey announced an execution moratorium to conduct an internal review of procedures after problems with intravenous lines caused several lethal injections to be canceled or delayed. Ivey lifted the moratorium in February.
Under Alabama law, lethal injection is the primary method of execution, though the condemned may request electrocution or nitrogen hypoxia. The latter method was approved for use in 2018, but has not been tried before.
“To subject Mr. Smith to a second execution by lethal injection would subject him to a torturous experience of unnecessary physical and psychological pain, as has been established through Alabama’s last three execution attempts,” Smith’s lawyers wrote in a court filing late last year.
Smith was convicted of murdering Elizabeth Sennett in 1988 on behalf of her husband, Rev. Charles Sennett, who was deeply in debt and wanted to collect on insurance.
Prosecutors said Smith and an accomplice, John Forrest Parker, were each paid $1,000 murder the woman, who was stabbed eight times in the chest and once on each side of the neck in the couple’s home.
Charles Sennett, who was involved in an affair, killed himself a week later.
Parker was executed in 2010. When asked if he had any final words, he turned his head to face Elizabeth’s two sons and said, “I’m sorry. I don’t ever expect you to forgive me. I really am sorry.”
With Post Wires