MONTGOMERY, Ala. — Alabama will attempt to put an inmate to death Thursday evening with nitrogen gas, a never-before-used execution method that the state says will be humane but critics call cruel and experimental.
Kenneth Eugene Smith, a 58-year-old convicted murderer whose 2022 lethal injection was called off at the last minute because authorities could not connect an IV line, will be executed at a prison in southern Alabama.
Alabama plans to place an industrial breathing mask over Smith’s face and replace his breathing air with pure nitrogen gas, causing him to die from lack of oxygen. The execution will be the first attempt to use a new execution method since the introduction of lethal injection in 1982, now the most common execution method in the United States.
Attorneys for Smith have waged a legal battle to halt the execution, arguing that the state wants to make Smith the “test case” for the new execution method that deserves more legal scrutiny before using it on an inmate.
“It’s an experiment,” said the Rev. Jeff Hood, Smith’s spiritual adviser and opponent of the death penalty.
The U.S. Supreme Court on Wednesday rejected Smith’s argument that it would be unconstitutional to make another attempt to execute him after the botched lethal injection. The U.S. 11th Circuit Court of Appeals also declined to halt the execution Wednesday evening, saying Smith had not adequately supported claims that the new execution method would violate the constitutional ban on cruel and unusual punishment. His lawyers are expected to appeal this decision to the US Supreme Court.
Smith is one of two men convicted of the 1988 murder of Elizabeth Sennett. Prosecutors said he and the other man were paid $1,000 each to kill Sennett on behalf of her pastor husband, who was deeply in debt and lacking insurance wanted to collect.
Alabama plans to strap Smith to a gurney in the execution chamber — the same room where he was strapped for several hours during the lethal injection attempt — and place a “full face mask with air supply” over his face. After being given the opportunity to make a closing statement, the director will activate the nitrogen gas from another room. The nitrogen will be administered through the mask for at least 15 minutes or “five minutes after a flat indication on the ECG, whichever is longer,” according to the state protocol.
Some states are looking for new ways to execute prisoners as the drugs used in lethal injections, the most common execution method in the United States, become increasingly 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 the untested method.
Alabama Attorney General Steve Marshall said Wednesday evening that he believes the courts will allow the execution to proceed.
“My office stands ready to continue the fight for Liz Sennett. Two courts have now rejected Smith’s claims. I remain confident that the Supreme Court will side with justice and that Smith’s execution will be carried out,” Marshall said.
The victim’s son, Charles Sennett Jr., said in an interview with WAAY-TV that Smith “needs to pay for what he did.”
“And some of these people say, ‘Well, he doesn’t have to suffer like this.’ Well, he didn’t ask Mom how to suffer?’ said the son. “They just did it. They stabbed her – several times.”
The state has predicted that the nitrogen gas will cause unconsciousness within seconds and death within minutes. A prosecutor told the 11th Circuit that this will be “the most painless and humane method of execution known to man.”
But some doctors and organizations have raised alarms about the state’s plan.
“It is indefensible for Alabama officials to simply dismiss the very real risks posed by this untested method and experiment on a man who has already survived one execution attempt,” said Robin M. Maher, executive director of the Death Penalty Information Center.
Much of what is known about death from nitrogen gas comes from industrial accidents or suicide attempts. Dr. Philip Nitschke, a euthanasia expert who designed a suicide capsule using nitrogen gas and appeared as an expert witness for Smith, said nitrogen can provide a peaceful, hypoxic death, but said he is concerned about Alabama’s proposal to mask to use.
Nitschke told The Associated Press that Smith’s facial hair, jaw movements and involuntary movements as he feels the effect of the nitrogen could be affecting the seal. If there are leaks, Smith could continue to get enough oxygen, “to continue in what could be quite a macabre, slow process where we’re slowly not getting enough oxygen,” Nitschke said. He said he could imagine scenarios in which the execution would go quickly or seriously wrong.
Marshall’s office noted in court papers that Smith previously suggested nitrogen as an alternative method in fighting attempts to execute him by lethal injection. Courts require prisoners who challenge execution methods to present another available alternative. At the time, Alabama had not yet developed a nitrogen protocol. Robert Grass, an attorney for Smith, told federal courts they are challenging the specific way the state plans to manage the nitrogen. They argued that using a gas mask puts Smith at risk for a prolonged and painful death or choking on his own vomit.
The American Veterinary Medical Association wrote in its 2020 euthanasia guidelines that nitrogen hypoxia is not an acceptable euthanasia method for most mammals because the anoxic environment is “distressing.” Experts appointed by the United Nations Human Rights Council warned that they believe the execution method could violate the ban on torture.
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. John Forrest Parker, the other man convicted of the murder, was executed in 2010.
Smith’s 1989 conviction was overturned. He was convicted again in 1996. The jury recommended a life sentence by an 11-1 vote, but a judge overruled the recommendation and sentenced Smith to death. Alabama no longer allows a judge to overrule a jury’s death penalty decision.