By Julie McCaffrey
ATMORE, AL — Kenneth Smith, 58, who took part in a murder-for-hire scheme in 1988, was executed Thursday night by the Alabama Department of Corrections using nitrogen hypoxia, according to the ACLU—the first time in America’s history that the gas has been used to execute a person.
The ACLU reports Smith was originally sentenced to life in prison, following a 11-1 jury vote. However, the sentencing judge overrode the jury’s decision and chose to impose the death penalty. This particular judicial override is no longer permitted in Alabama or any other state.
Smith underwent an unsuccessful execution more than a year ago, according to the news site AL.com. In November 2022, he was set to be executed by lethal injection, but it was called off when the Alabama Department of Corrections could not find a suitable vein.
While the state claimed execution by nitrogen hypoxia would be painless, witnesses saw Smith thrash against his restraints and slowly suffocate, states AL.com. According to them, the gas started flowing at 7:58 p.m., and Smith stopped breathing at approximately 8:08 p.m.
Originally, Smith petitioned the Supreme Court to block his execution, reports the ACLU. The court denied his request in a 6-3 vote.
In her dissent, Justice Sonia Sotomayor writes, “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before.
“This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit. I sincerely hope that he is not proven correct a second time. With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.”
Justices Ketanji Brown Jackson and Elena Kagan joined Sotomayor in her dissent.
The three dissenting justices are not the only ones to criticize Alabama for its use of this gas.
Yasmin Cader, deputy legal director at the ACLU and the director of the Trone Center for Justice and Equality, wrote, “After a botched attempt to execute him by lethal injection in 2022, state officials chose to kill Mr. Smith by suffocating him to death with nitrogen gas, a method United Nations experts warned could constitute torture in violation of international treaties the U.S. has ratified. Mr. Smith should have never been killed, let alone in such a gruesome manner.”
Cader continued, “Alabama’s execution of Kenneth Smith in a horrific, reckless, and untested manner is a profound illustration of the barbaric practice of capital punishment. It’s past time for our country to put an end to the death penalty instead of inventing new and more heinous ways of carrying it out.”
The execution method also led to international outcry.
According to AL.com, the United Nations has “express(ed) alarm” over the execution. A panel of UN experts said such an execution was experimental and may violate the UN convention against torture and other cruel punishment.
Finally, the experts stated the execution should have been halted, pending a procedural review, because there was a “possibility of grave suffering which execution by pure nitrogen inhalation may cause.”
However, the Alabama Attorney General’s Office stated nitrogen hypoxia is “perhaps the most humane method of execution ever devised,” reports AL.com.
The Attorney General’s Office continues, “Smith challenged the State’s lethal injection protocol and demanded nitrogen hypoxia as his method of execution. Now, he characterizes nitrogen hypoxia as ‘new,’ ‘novel,’ and ‘experimental.’ Such allegations cannot fairly be the basis for relief now—after Smith litigated successfully for the method of execution he will receive.”
While it is true that Smith did initially request to be executed by nitrogen hypoxia, this was before he was provided with the Alabama’s Department of Corrections Protocol for executing people using the gas, according to AL.com.
Smith’s attorneys said, “He was only provided with a heavily redacted copy of the Protocol in late August, at the same time that the State informed him that he would be the first person subject to it and moved in the Alabama Supreme Court for authority to execute him under its procedures.
“Mr. Smith did not receive an unredacted copy of the Protocol until late November when the district court ordered Respondents to produce it.”
AL.com writes that the execution was witnessed by Smith’s wife, son, lawyer and friend. As the viewing curtain opened, Smith signed “I love you” and wore his wedding ring. In his last words, Smith stated, “Tonight, Alabama causes humanity to take a step backwards. I’m leaving with love, peace and light… thank you for supporting me. Love all of you.”
