ATMORE, Ala. (CN) — With all of his legal appeals exhausted by Thursday night, condemned Alabama inmate Kenneth Eugene Smith became the first inmate in the nation to be executed by nitrogen hypoxia.
Smith was pronounced dead at 8:25 p.m. Central time Thursday. According to media witnesses, the curtain was pulled back at around 7:57 Central time, and Smith made a lengthy statement.
He thanked his supporters, then added the procedure was causing “humanity to take a step backwards.” As the nitrogen began to flow, Smith told his family and friends he loved them and gestured with his hands.
Reportedly, Smith then began “shaking and writhing” for a period of about two minutes. Afterward, he fell still but began breathing heavily for another “several minutes.” His breathing gradually slowed until the curtain was closed at 8:15 p.m.
During a news conference afterward, Alabama Commissioner of Corrections John Q. Hamm reported Smith appeared to “hold his breath as long as he could” while he “struggled against the restraints.” But Hamm said involuntary physical responses were expected and “nothing was out of the ordinary.”
Smith was convicted of capital murder for his role in the 1988 stabbing death of Elizabeth Sennett, whose husband had hired Smith and another man to murder his wife so he could collect life insurance benefits. The husband later died by suicide and Smith’s co-defendant was executed by lethal injection in 2010. The jury in Smith’s case recommended a life sentence by a vote of 11-1, but in a practice that has since been outlawed, the judge was allowed to override the recommendation and sentence him to death.
Mike Sennett, the son of victim Elizabeth Sennett, said he and his surviving family members had forgiven those convicted of the crime long ago. He said the execution was bittersweet but Smith’s “debt was paid tonight.”
“Nothing happened here today that’s going to bring mom back,” he said.
Notably, not only is it the first nitrogen hypoxia execution in the United States, but it's Alabama's second attempt to effectuate Smith’s sentence. In November 2022, he was strapped to a gurney for more than four hours while officials tried and failed to find a vein to administer lethal injection drugs.
As such, his attorneys had argued a second execution attempt would violate Smith’s constitutional protections against cruel and unusual punishment, while also characterizing the nitrogen hypoxia method as “experimental.” Several experts have expressed concerns about the process, in which Smith was strapped to a gurney and fitted with an airtight face mask.
But Smith’s attorneys argued the flow of nitrogen could be complicated by a broken seal on the mask, or if Smith vomits during the procedure. They also made religious freedom arguments because the mask could have inhibited Smith from audible prayer, while the gas may have threatened others in the room, including Smith’s spiritual adviser.
But on Jan. 24, both the U.S. Supreme Court and the 11th Circuit Court of Appeals released rulings unfavorable to Smith, with the former declining to hear an emergency appeal, and the latter finding in a 2-1 ruling to deny Smith's eleventh-hour petition for a stay.
In a dissenting opinion, U.S Circuit Judge Jill A. Pryor, an appointee of President Barack Obama, wrote the state’s protocol for the execution “has never been tested,” while there are “real doubts about the protocol’s ability to safeguard a condemned person’s constitutional rights.”
Pryor wrote she was particularly concerned about the possibility that Smith chokes on his own vomit while the state, by policy, refuses to intervene.
“The cost, I fear, will be Mr. Smith’s human dignity, and ours,” Pryor added.
U.S. Circuit Judge Charles R. Wilson, who joined U.S. Circuit Court Judge Britt C. Grant in the majority opinion, expressed similar concerns, although he determined the lower court did not err when it rejected Smith’s Eighth and 14th Amendment arguments. Wilson is an appointee of President Bill Clinton, while Grant is an appointee of President Donald Trump.
One hour before the execution, the U.S. Supreme Court also issued an order denying Smith’s motion for a stay of execution. Liberal Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor dissented, with Sotomayor likening the procedure to cruel and unusual human experimentation.
Moments after the decision was handed down, Department of Corrections officials escorted five state media witnesses to the prison, about a mile away from the off-site media center.
Earlier in the afternoon, the department reported Smith spent the day Thursday visiting with family and friends and his spiritual advisor, while he reportedly accepted a breakfast and a final meal of steak, hashbrowns and eggs. Representatives of the victim’s family attended the execution, along with state witnesses from the Attorney General’s Office and Department of Corrections. Smith’s own witnesses included his wife, attorney, a family friend and his spiritual advisor Jeff Hood, who was present in the execution chamber with Smith.
Republican Governor Kay Ivey has not granted clemency to any of the 13 death row inmates who have been executed on her watch. The state developed legislation to administer nitrogen hypoxia execution after the supply chain for lethal injection drugs was disrupted in 2018. The protocol for carrying out the procedure was developed in 2023 following Smith's first execution attempt.
Meanwhile, Alabama botched another lethal injection execution in 2022, when officials similarly failed to find veins in Alan Miller. Following Smith’s execution, Miller may become the next inmate to suffer the same fate.
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