Alabama can put murderer Kenneth Eugene Smith to death with nitrogen gas, a federal appeals court ruled Wednesday.
The ruling refuses to block the country’s first execution by a new method since 1982.
Smith will be gassed by nitrogen hypoxia tomorrow at 6:00 PM in Atmore, Alabama. It will be the first execution of its kind in the US and the first known nitrogen execution in the world.
Earlier Wednesday, Smith had begged the Supreme Court for mercy, citing experts’ concerns about the method, despite having previously asked for it, and that it would violate the Eighth Amendment’s ban on cruel and unusual punishment. They rejected that appeal.
Now it appears they will likely hear and decide whether Alabama can use the new execution method before Smith is put to death.
Alabama can put murderer Kenneth Eugene Smith to death with nitrogen gas, a federal appeals court ruled Wednesday
Kenneth Smith will be executed on Thursday with nitrogen gas, which has been labeled “torture” by the UN and scientists have largely banned animal testing
Prosecutors said Smith and John Forrest Parker were each paid $1,000 to kill Elizabeth Sennett for husband Charles Sennett Sr., who was deeply in debt and wanted to collect insurance premiums.
Smith, 58, is one of two men convicted in the 1988 murder of a pastor’s wife that rocked a small north Alabama community.
Prosecutors said he 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.
Sennett, 45, was found dead in her Colbert County home on March 18, 1988, with eight stab wounds to the chest and one on each side of her neck, the coroner said.
Her husband, Charles Sennett Sr., committed suicide when the investigation focused on him as a suspect, court documents show.
Smith’s initial 1989 conviction was overturned on appeal, but he was retried and convicted again in 1996.
The jury voted 11 to 1 to recommend a life sentence, but a judge overruled that and sentenced him to death. Alabama no longer lets judges overrule jury decisions in death penalty cases.
John Forrest Parker, the other man convicted of the murder, was executed in 2010.
Smith was scheduled to be executed by lethal injection last year, but nurses struggled to find a clear vein in time before the execution order expired.
Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore is pictured in this file photo
Former death row inmates who were exonerated, from left to right Randall Padgent, Gary Drinkard and Ron Wright, were among nearly a hundred protesters who gathered at the State Capitol building in Montgomery on Tuesday to ask Gov. Kay Ivey to suspend the planned execution of Kenneth Eugene. Smith
Nearly a hundred demonstrators gather at the state capital building
A panel of the 11th U.S. Circuit Court of Appeals rejected Smith’s request for an injunction to halt his scheduled execution for nitrogen hypoxia on Thursday.
Smith’s lawyers have argued that the state is trying to make him a test subject for an untested execution method and are expected to appeal to the U.S. Supreme Court.
The method involves placing a respirator face mask over the nose and mouth to replace the inhaled air with nitrogen, which causes death from lack of oxygen.
The state predicted in court filings that the gas will cause a prisoner to lose consciousness within seconds and cause death within minutes.
Critics of the untested method say the state cannot predict what will happen and what Smith will feel after the warden turns on the gas.
Some states are looking for new ways to execute death row inmates as the drugs used in lethal injections, the most common method of execution in the United States, have become difficult to find.
Three states – Alabama, Mississippi and Oklahoma – have approved nitrogen hypoxia as an execution method, but so far no state has attempted to use it.
The experimental method is so grim that the American Veterinary Medical Association ruled it too “disturbing” to use when euthanizing animals in 2000.
Dr. Philip Nitschke, an expert on assisted suicides who uses the gas in his ‘euthanasia capsules’, has also warned of how unpleasant it will be for Smith.
“I’m worried about Kenny, and I just don’t know which way things are going,” Nitschke told The New York Times.
He says that while nitrogen hypoxia is appropriate in chambers, the fact that Smith will be wearing a mask brings with it the possibility of oxygen leaking in, prolonging the procedure.
The Rev. Jeff Hood, Smith’s spiritual confidante, told the Times he expects him to hit the gurney.
‘This will not be a peaceful experiment. “I think it’s important for people to realize that if you tie someone up like that, you can’t expect someone who’s choking, choking, not to resist,” he said.
The Alabama Lethal Injection Chamber at Holman Correctional Facility in Atmore, Alabama, is pictured in this Oct. 7, 2002 file photo. Kenneth Smith, 58, is scheduled to be executed on Jan. 25, 2024
Elizabeth’s preacher husband Charles Sennett Sr., who was in debt and terrified she would find out
Meanwhile, a Catholic priest wants to enter the execution chamber to accompany Smith during his final moments, fearing that he could be endangered by the new technique.
Rev. Jeff Hood told WFSA, “We are being exposed to nitrogen gas in a way that no one in the history of humanity has ever been exposed to nitrogen gas.
“It’s scary, there’s no doubt about that. But it’s not scary enough to turn me away from what God has called me to do.”
Hood also had to sign a waiver from the state to be in the room during the execution.
He also told WVTM, “I would rather risk my life than forsake my calling. Let there be no doubt: we will resist this tyranny until we can resist it no more.
“Kenny Smith is a child of God. The state of Alabama will never be able to suppress that truth.”
Hood also added that Smith is afraid of what will happen to him, saying, “Right now, Kenny is sick, deeply tormented and shocked by the nitrogen hypoxia experiment to come.
In the room will be an unnamed correctional officer and the Rev. Dr. Jeff Hood, a Catholic priest and former death row minister. Hood, in the photo, fears that his own health could be endangered by the new technology
“Despite the darkness that has descended, he is doing his utmost to fill every second he has left with as much love as he can muster.”
Smith and another man stabbed Sennett to death in a murder-for-hire plot orchestrated by her pastor husband, who paid Smith $1,000 for the killing.
Per state protocol, a “full-face air-supplied mask” will be placed over Smith’s face, administering the gas for at least 15 minutes.
Alabama Attorney General Steve Marshall says this is the treatment Smith deserves for the gruesome murder he committed 36 years ago.
Commenting on Smith’s Supreme Court request for a stay of execution, Marshall said: “Kenneth Smith will be executed by nitrogen hypoxia, perhaps the most humane method of execution ever devised.
‘Such treatment is far better than what Smith gave to Elizabeth Sennett almost thirty-six years ago. Smith and an accomplice tricked Elizabeth into letting them into her home, but stabbed her eight times in the chest and twice in the neck – all to make a quick buck.
Now Smith says his execution will be cruel and unusual because he was ‘stabbed’ with a needle to gain IV access during an earlier execution attempt 14 months ago.
“Smith’s application for residency should be denied,” he wrote.