SCOTUS allows death row inmate in Alabama to sue to die from nitrogen gas after lethal injection is halted

The U.S. Supreme Court on Monday allowed a challenge by an Alabama death row inmate who faced trial months before surviving a botched execution, claiming the state’s troubled lethal injection trial would violate constitutional protections against cruel and unusual punishment .

In an unusual case that has returned to the judges because the execution of convicted murderer Kenneth Smith failed, they rejected an appeal by Alabama officials against a lower court’s decision to rekindle his lawsuit to bar the state from putting him to death by lethal injection.

Smith instead tries to be executed with nitrogen gas.

Conservative justices Clarence Thomas and Samuel Alito disagreed with the decision to allow Smith’s challenge to proceed.

Kenneth Eugene Smith (left) was convicted of the 1988 murder-for-hire of pastor’s wife Elizabeth Sennett (right). Smith, 57, argued that the state should not try to execute him by lethal injection again, but should use nitrogen gas instead

Kenneth Smith filed his lawsuit in August 2020, claiming the state’s lethal injection protocol would expose him to unnecessary pain. Pictured is Alabama’s lethal injection room at Holman Correctional Facility in Atmore

Alabama Attorney General Steve Marshall, a Republican, is disappointed with the court’s action and his office is reviewing it to determine next steps, a Marshall spokesman said. Smith’s attorney Robert Grass declined to comment.

A majority of judges in November cleared the way for the execution of Smith, who had been sentenced to death for his role in a 1988 murder-for-hire.

Smith, 57, filed his lawsuit in federal court last August — months before his botched execution.

The lawsuit alleged that the state’s lethal injection protocol would subject him to cruel and unusual punishments in violation of the Eighth Amendment to the U.S. Constitution based on problems Alabama officials encountered in putting previous convicted inmates to death, including access to veins to insert intravenous lines.

The Alabama method posed an “unacceptable risk of torture, cruelty or substantial pain,” according to Smith’s lawsuit.

The case centers on whether, according to Supreme Court precedent, a death row inmate can claim that an execution method known as nitrogen hypoxia, which has been approved by the Alabama legislature but not yet used by the Department of Corrections, is a legal alternative.

Smith tries to demand that Alabama execute him by inhaling nitrogen, a gas that would deprive his body of oxygen.

Smith has said the protocol would significantly reduce the risk of aborted executions or pain, such as a feeling of drowning or suffocation.

A judge dismissed Smith’s lawsuit, but on November 17, the day of his scheduled execution, the Atlanta-based 11th U.S. Circuit Court of Appeals revived his case, allowing Smith to file an amended complaint.

The 11th Circuit also stayed his execution in a separate decision, but after the state appealed to the Supreme Court, the judges allowed it to proceed. The three liberal justices of the nine-member Supreme Court disagreed with that decision.

State officials tried repeatedly that night, but failed to place the necessary intravenous lines or a central line in his collarbone area before the execution was called off after 11 p.m.

Elizabeth Sennett had two sons, Chuck and Mike, and several grandchildren. She was killed when her husband, the Reverend Charles Sennett, hired a man to kill her. He was put to death in 2010. Charles Sennett committed suicide a week after his wife’s murder

Sennett’s husband, who was a pastor of the Westside Church of Christ in Sheffield, committed suicide a week after her death as the murder investigation began to focus on him as a suspect, according to court documents

John Forrest Parker, the other man convicted of the murder, was executed in 2010

‘Mr. Smith’s worst fears began to play out much as his federal lawsuit had alleged, his lawyers said in court documents, adding that the experience “subjected him to hours of torture as he attempted to execute him and exposed him to the severe mental anguish of a mock execution.’

Alabama Governor Kay Ivey, a Republican, announced a review of the state’s execution procedures following Smith’s case, marking the third time Alabama had called off an execution since 2018 after problems placing intravenous lines. Officials completed their review in February.

Smith was convicted in 1989 of the murder of Elizabeth Dorlene Sennett the previous year after he and an accomplice were hired by her husband Charles Sennett, a Christian minister who prosecutors say took out a large insurance policy for his wife. She was repeatedly stabbed and beaten with a blunt object.

Charles Sennett later committed suicide. Smith’s accomplice was also found guilty and sentenced to death, with the execution taking place in 2010.

Smith’s case is not a challenge to the death penalty itself.

Some liberal judges have questioned the death penalty in the United States, but the court, with its conservative majority of 6 to 3, does not seem likely to change course.