(CN) — A federal judge on Wednesday denied an Alabama death row inmate's request to stop or delay his Jan. 25 execution, paving the way for the state to become the first to employ a new execution method known as nitrogen hypoxia.
Kenneth Eugene Smith was convicted in 1996 in the 1988 stabbing death of Elizabeth Dorlene Sennett. Smith was hired by Sennett’s husband to commit the murder, as the husband was in debt and wanted Sennett’s life insurance benefits. Although a jury recommended a life sentence for Smith by a vote of 11-1, the trial judge handed down the death penalty in a practice known as judicial override, which has since been outlawed in the state.
But Smith advocated for his execution by nitrogen hypoxia both before and after his previous execution by lethal injection was called off. In November 2022, Smith was strapped to a gurney in the execution chamber for more than an hour while state officials tried and failed to find a vein to administer deadly IV drugs.
This time, the state plans to place a respirator-type face mask over Smith’s nose and mouth and replace breathable air with nitrogen, causing him to die from lack of oxygen.
In the instant case before U.S. District Judge R. Austin Huffaker, Smith argued a second attempt should be barred because his appeals have not been exhausted, the state’s execution protocol is untested and it will violate his religious freedom.
During a hearing in December, experts for both parties speculated over the effectiveness of using a mask rather than a hood to administer the deadly gas. Smith has argued if the mask does not fit snugly, it may come loose or allow oxygen to enter at the seams, possibly leaving him in a vegetative state rather than killing him. The state’s newly written 40-page protocol also fails to accommodate for the possibility of Smith speaking or vomiting during the procedure, which may render the mask ineffective.
Huffaker upheld Smith’s Eighth Amendment claim of cruel and unusual punishment, agreeing the state’s protocol does not account for the potential risk of serious harm. But he rejected Smith’s 14th Amendment claim, finding the defendants were not responsible for ordering Smith’s execution but that the attorney general, who is not a party to the federal case, was.
Further, Huffaker upheld Smith’s First Amendment and religious freedom claims because the state’s protocol does not permit him to speak his final words or audibly pray without wearing the mask.
“Although it is entirely possible that the protocol’s regulation of Smith’s speech rights is reasonable, that fact-centered determination is not before the court at this stage of the litigation,” Huffaker wrote. “Instead, the court must determine whether Smith has alleged enough to state a plausible claim that the protocol imposes an unreasonable restriction on his First Amendment free speech rights. Because the court concludes he did, although barely, the defendants’ motion to dismiss Smith’s free speech claim … will be denied.”
Using the same arguments, Smith’s claim for preliminary injunction was rejected after he failed to meet his burden for success on the merits. Huffaker wrote that although the concept of nitrogen hypoxia is novel and the state’s protocol may have room for improvement, it does not amount to cruel and unusual punishment.
Nitrogen hypoxia has also been approved as an execution method in Mississippi and Missouri, but neither state has published a protocol. During Smith’s hearing in December, Dr. Joseph Antognini, an anesthesiologist, submitted a declaration suggesting Alabama’s protocol would render the subject unconscious within 40 seconds, with death expected in under 15 minutes.
“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,” the judge wrote. “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 is not guaranteed a painless death.”
Smith’s co-defendant in the case, John Parker, was executed in 2010, while Sennett’s husband died by suicide as investigators focused on his involvement.
Unless the execution is halted by the U.S. Supreme Court, Alabama Attorney General Steve Marshall said Wednesday he expects it will be carried out as scheduled.
“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.”
Meanwhile, in a blog post January 4, the Equal Justice Initiative said the state’s protocol and case against Smith remains problematic.
“Alabama has already subjected Kenny Smith to the physical anguish and mental torment of execution,” said EJI executive director Bryan Stevenson. “It is both shocking and cruel to allow Alabama to put him through the psychological torture of another execution date.”
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