By David M. Greenwald
Executive Editor
The state of Alabama on Thursday night executed Kenneth Smith, in a heavily watched state sanctioned killing. The case was notable because it was the first-ever nitrogen gas execution taking place about a year after he survived a botched lethal injection execution attempt.
The method was controversial and untested.
According to the Associated Press, Smith “appeared to shake and writhe on the gurney, sometimes pulling on the restraints” for at least two minutes, followed by several minutes of heavy breathing.
Another account noted, “Witnesses saw Smith struggle as the gas began flowing, with between two and four minutes of writhing and thrashing, and around five minutes of heavy breathing.”
Getting less attention was the fact that Smith’s jury voted 11-1 to impose a life 
sentence and the judge overrode it and imposed death—a process that is not allowed in any state in the nation presently.
The Supreme Court denied a stay of execution.
In her dissent, Justice Sonya Sotomayor noted, “Alabama plans to execute Kenneth Eugene Smith tonight by nitrogen hypoxia. That method is untested. Smith is the first person in this country ever to be executed in this way.”
Sotomayor described in detail the horrific manner of death, noting that once Smith is strapped into the chair and the nitrogen is flowing into the mask, “his executioners will not intervene and will not remove the mask, even if Smith vomits into it and chokes on his own vomit.”
She called Smith a surprising candidate to test this novel method, noting that Alabama in November 2022 already botched an executive by lethal injection.
“It was Alabama’s third failed execution in a row in five months,” she wrote.
She adds, “Since that day, Smith has suffered from posttraumatic stress. Reliving those hours strapped to the gurney, his medical records confirm worsening bouts of nausea and vomiting over the past few weeks.”
She argued, “Alabama’s untested execution protocol will likely subject him to an unconstitutional risk of cruel and unusual punishment.”
According to one of Smith’s experts “there is a substantial and serious risk that Mr. Smith will experience nausea and vomiting during his execution,” thus “asphyxiating—that is, choking to death—on his own vomit.”
Not long ago, she continued, this Court remarked that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”
Sotomayor added, “This case shows how that protection can be all too fragile…. With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.”
Death Penalty Policy Project Director Robert Dunham had warned prior to the execution that the method was slow, with many noting it could take up to seven minutes to die—a prediction that was borne out by the execution.
He also noted in an interview with Reuters last week, “Kenneth Smith is being executed, despite the fact that 11 of the 12 jurors in his case voted for life. So this is a person who never should have been sentenced to death in the first place.”
He added, “But Alabama had a law that permitted the trial judge to override the recommendation of the jury. It no longer does that; it is impermissible and no state in the United States permits a judge to override a jury vote for life. But Alabama, after abandoning that process, has refused to overturn the death sentences of the individuals who were sentenced to death in, in essentially violation of the community’s judgment.”
In 2023, Alabama was just one of five states to execute anyone, as the number of executions in America continues to decline and be confined to mostly southern, deeply red states.
“The U.S. is the only Western nation to still use the death penalty,” Fair and Just Prosecution Executive Director Miriam Krinsky said in a statement prior to the execution. “We regularly use this ultimate punishment against people of color and society’s most vulnerable—people with mental illness, intellectual disabilities, traumatic brain injuries and those who have experienced serious sexual and physical abuse as children.”
As more than 55 elected prosecutors came together to stress in 2022, this pattern of executing the “unluckiest of the unlucky” compels us to end use of the death penalty immediately.
“Instead, we are all complicit as Alabama moves forward with a state-sponsored killing that evokes troubling memories of the Holocaust,” Krinsky continued. “As a civilized nation, our desire for retribution should never outweigh our humanity. Today we fail that basic test. We unequivocally condemn this execution and once again urge policymakers across the country to abolish the barbaric use of capital punishment.”
Here’s what Smith was being executed for:
The jury voted against death in his case. But, the remarkable thing about the death penalty is it completely takes away the focus from the crime and puts the focus on the state and the system. No one can tell you anything about the crime, everyone knows how Smith was executed.
I thought I’d post what Smith’s actual crime was because as often the case the Vanguard never posts the horrendous circumstances behind the killer’s conviction.
And I thought I’d point out that the people who heard the trial didn’t believe he should be executed.
Republicans have disregarded the Constitutional provision against cruel and unusual punishment. Horrific equals cruel and untested is unusual. This demonstrates the GOP abuses the Constitution at their discretion.