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By The Vanguard Staff
MONTGOMERY, AL – The U.S. Supreme Court could ultimately make the final decision, but, for now, Alabama is planning to be the first state to kill an inmate in an execution with nitrogen gas, as early as this month, after a federal judge ruling—the man’s lawyers criticize the method as cruel and experimental.
U.S. District Judge R. Austin Huffaker last week rejected inmate Kenneth Eugene Smith’s request for a preliminary injunction to stop his scheduled Jan. 25 execution by nitrogen hypoxia, according to the Associated Press.
The AP added “Smith’s attorneys have said Alabama is trying to make Smith the ‘test subject’ for an untried execution method after he survived the state’s previous attempt to put him to death by lethal injection.”
Smith’s attorney, Robert Grass, told AP he will appeal the decision, arguing the new protocol is “riddled with unknowns and potential problems and violates a constitutional ban on cruel and unusual punishment,” said the AP story.
Smith, now 58, was one of two men convicted of the murder-for-hire of a preacher’s wife that rocked Alabama in 1988, wrote the AP, adding prosecutors said, “Smith and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.”
The AP story noted “Smith’s initial 1989 conviction was overturned on appeal. He was retried and convicted again in 1996. The jury recommended a life sentence by a vote of 11-1, but a judge overrode the recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s decision on death penalty decisions.”
John Forrest Parker, the other man convicted in the case, was executed in 2010.
“(Judge) Huffaker acknowledged that execution by nitrogen hypoxia is a new method but noted that lethal injection — now the most common execution method in the country — once was also new,” wrote AP, noting “Smith had shown the theoretical risks of pain and suffering under Alabama’s protocol, (but) those risks don’t rise to an unconstitutional violation.”
“Smith is not guaranteed a painless death. On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework,” Judge Huffaker wrote in the 48-page ruling.
Huffaker also wrote that there wasn’t enough evidence to find the method “is substantially likely to cause Smith superadded pain short of death or a prolonged death.”
AP wrote, “The Alabama Department of Corrections tried to give Smith a lethal injection in 2022 but called it off when authorities couldn’t connect two intravenous lines.”
The Rev. Dr. Jeff Hood, Smith’s spiritual adviser who plans to be with Smith during the execution, said he was troubled by the ruling. “Horror is an understatement. The State of Alabama now has the permission of a federal court to suffocate its citizens,” Hood said.
Experts appointed by the United Nations Human Rights Council earlier this month cautioned that, in their view, the execution method would violate the prohibition on torture and other cruel, inhuman or degrading punishment.
Alabama Attorney General Steve Marshall praised the judge’s decision, claiming it will allow the state to hold “Kenneth Smith accountable for the heinous murder-for-hire slaying. 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.”
The AP wrote the “state’s plans call for placing a respirator-type face mask over Smith’s nose and mouth to replace breathable air with nitrogen, causing him to die from lack of oxygen. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but none has used it so far.”
The state attorney general’s office compared the new execution method to industrial accidents in which people passed out quickly and died after exposure to nitrogen gas.
But, reported the AP, Smith’s attorneys noted in court filings that the American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is an acceptable method of euthanasia for pigs but not for other mammals because it could create an “anoxic environment that is distressing for some species.”
