Alabama court says state can make second attempt to execute inmate whose lethal injection failed
MONTGOMERY, Ala. — The Alabama Supreme Court on Friday rejected the appeal of a death row inmate expected to be the first person to be put to death with nitrogen gas, arguing he should not be executed after an earlier attempt at a lethal injection failed.
Judges without dissent rejected arguments that a second attempt to execute Kenneth Eugene Smith would violate federal and state bans on cruel and unusual punishment. A circuit judge had previously rejected Smith’s argument, and the decision was upheld by a state appeals court. State judges declined to review the decision.
βThe Court of Criminal Appeals concluded that a second execution attempt under such circumstances would not constitute cruel and unusual punishment contrary to the Constitutions of the United States and Alabama β a conclusion not contradicted by the Supreme Court’s rulings,β wrote Judge Greg Cook in a concurring opinion.
Smith, 58, is expected to be executed on January 25 due to nitrogen hypoxia, an execution method allowed in three states but never used to put an inmate to death. In this method, a mask is placed over the prisoner’s nose and mouth and the inhaled air is replaced with nitrogen, which causes death due to lack of oxygen.
The Alabama Department of Corrections attempted to give Smith a lethal injection in 2022. Smith was strapped to the gurney in the execution chamber, but the execution was called off when members of the execution team were unable to connect the second of two required intravenous lines to Smith’s veins. .
The state case was one of two pending appeals by Smith. A federal judge ruled Wednesday in a separate case that the new method does not violate the ban on cruel and unusual punishment and rejected Smith’s request for a preliminary injunction to block the execution. The 11th U.S. Circuit Court of Appeals will hear oral arguments next week in Smith’s appeal of that decision
Smith was one of two men convicted in 1988 of murder-for-hire of a pastor’s wife. Prosecutors said Smith and the other man were each paid $1,000 to kill Elizabeth Sennett.