Supreme Court allows Alabama to move forward with experimental execution 

WASHINGTON (CN) — The Supreme Court refused to pause an experimental execution in Alabama on Wednesday, allowing the state to move forward with the U.S.’s first oxygen deprivation execution. 

Kenneth Eugene Smith asked the Supreme Court to block Alabama’s second shot at carrying out his death sentence.

For nearly two hours in 2022, Smith was poked and prodded while he lay in pain on the execution table. The state was forced to abandon the attempt — the second time it had to do so in three months — when officials were unable to establish an IV line before Smith’s death warrant expired. 

The court did not explain its decision not to pause Smith’s execution or review his appeal. There were no public dissents. 

Lethal injection requires prison officials to establish two places of IV access on death row inmates to carry out an execution.

In another case in 2022, Alabama spent three hours attempting to establish Joe Nathan James Jr.’s IV line. He was repeatedly punctured on his elbow joints, right foot, forearm, both wrists and both hands as officials attempted to establish the line. When officials finally gained access, James was unconscious and unable to say his final words. 

Only a few months later, Alabama again struggled to execute Alan Miller. For 90 minutes, Miller was punctured by the IV team — an experience he described as having pain similar to being electrocuted. 

Alabama’s next attempt was Smith’s execution, leading to a monthslong pause while the state reevaluated its protocols.

Last year Alabama tried to carry out Smith’s execution again, but the Supreme Court stepped in. Smith had asked the justices to force Alabama to use an alternative execution method: nitrogen hypoxia. Instead of administering lethal injection by IV, inmates are forced to wear a mask that pumps nitrogen into their system and deprives them of oxygen. 

The Supreme Court agreed to allow Smith to pick nitrogen hypoxia as his preferred method but then Smith challenged Alabama’s attempt to carry out the execution.

Smith’s petition before the court, however, focuses less on the execution method and more on the execution itself. He told the justices it would be cruel and unusual punishment to allow Alabama to get a second shot at executing him after it failed to do so the first time. 

“States have failed at executions before,” Robert Grass, an attorney with Arnold & Porter representing Smith, wrote. “But upon information and belief, if Alabama proceeds with its planned execution attempt, it will be only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt.” 

The previous iteration of this scenario occurred in the 1940s when Louisiana attempted to kill a Black teenager using an electric chair. The executioner flipped the switch with 16-year-old Willie Francis strapped to the chair but the electric current failed to kill him. Francis attempted to stop the state from trying to execute him again but the Supreme Court shot down the attempt. 

Francis’ case asked a double jeopardy question, inquiring if his second execution would violate due process. Smith, on the other hand, is using the Eighth Amendment to fight his second attempt. 

“Alabama’s recent history of botched or failed executions further demonstrates the need for clarity on the question of what constitutes a lingering death,” Grass wrote.

An 1890 high court case recognized that punishments are cruel if they involve torture or a lingering death. Smith cited Alabama’s recent execution failures as an opportunity for the court to define how far states can go when attempting to execute a death row inmate.  

“That string of failures — resulting in needless physical and emotional suffering — demonstrates the need for guidance on the meaning of a ‘lingering death;’ without it, there is no outer limit on a state’s ability to engage in protracted executions or even, as is the case here, an execution by installments over the course of more than one year,” Grass wrote. 

Alabama suggests that execution by nitrogen hypoxia is “perhaps the most humane method of execution ever devised.” The procedure has never been attempted in an execution setting in the U.S. and has raised safety concerns from medical professionals. Smith’s pastor was forced to sign a waiver concerning the risks of just being in the room with him during the procedure. 

Alabama says this execution method, however, would be far better than the treatment Smith gave to Elizabeth Sennett, the woman whose murder landed Smith on death row. 

Smith was convicted for the murder-for-hire killing of a pastor’s wife in 1988. The jury voted 11-1 to sentence Smith to life in prison without the possibility of parole but a judge overturned the decision and sentenced Smith to death. Trial judges are no longer allowed to make such determinations. 

Alabama compared Sennett’s murder — she was stabbed multiple times — to Smith’s prior execution where the state “stabbed” him to obtain IV access. The state urged the justices to deny Smith’s petition, citing the court’s prior ruling on second execution attempts. 

“If a second attempted electrocution is constitutional, so is Smith’s execution by nitrogen hypoxia,” wrote Edmund LaCour Jr., Alabama’s solicitor general. 

Follow @KelseyReichmann

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