Alabama's attorney general has asked the state Supreme Court to set the execution date of a man to be put to death by nitrogen hypoxia after an effort to carry out his sentence by lethal injection was called off following last-minute appeals and problems inserting an IV line.
If granted, it would be the first use of nitrogen hypoxia, an untested and highly controversial method that involves forcing a person to breathe pure nitrogen until they pass out and die from a lack of oxygen, in an execution.
“It is a travesty that Kenneth Smith has been able to avoid his death sentence for nearly 35 years after being convicted of the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” Attorney General Steve Marshall wrote in a statement Friday following his request to the state's high court to set a date.
Smith was convicted by a jury in 1989 and sentenced to death for Sennett's murder. Sennett's husband, Charles, an Alabama pastor, had paid Billy Williams to kill his wife so he could collect the life insurance money. Williams outsourced the deadly deed, paying Smith and John Parker $1,000 to carry out the crime.
Smith was then convicted of capital murder and sentenced to death, but his sentence was appealed in 1992. At his second trial, a jury of his peers once again found him guilty but voted 11 to 1 to spare his life. However, a judge overruled the jury and ordered Smith to die by lethal injection. Alabama has since banned the practice of overruling the jury in death penalty cases but did not make the rule retroactive, cementing Smith's place in line for execution.
Smith had originally been set to die on Nov. 17, 2022, but his attorneys filed last-minute appeals, holding up the process, even though the Supreme Court eventually cleared the way for his execution. But it was prison officials who called it off after determining they did not have enough time to carry out the death warrant before it expired at midnight despite trying to insert two intravenous lines into Smith shortly after 10 p.m. John Q. Hamm, the commissioner of Alabama's prisons, said officials tried to insert the second line into "several locations" without success.
Alabama Department of Corrections Commissioner John Hamm comments on the case of Kenneth Smith, who was scheduled to be executed by the state this evening. https://t.co/fy1Q6rgZxO
— Lee Hedgepeth (@lee_hedgepeth) November 18, 2022
Smith's case was the second execution in two months that Alabama officials botched by failing to find a vein to insert the lethal cocktail into.
The two incidents caused the state to pause its executions briefly and review its procedures.
Smith and his lawyers had petitioned the courts, arguing he should be spared from lethal injection and instead be allowed to die by nitrogen hypoxia.
In May, the U.S. Supreme Court ruled in his favor.
Alabama lawmakers approved the use of nitrogen hypoxia as an alternative to lethal injections in 2018 after the drugs became more difficult to buy, even though executing someone with pure nitrogen had never been used in the United States or tested on human beings.
Then-state Sen. Trip Pittman, a Republican who sponsored the 2018 bill, said he believed breathing in the gas would be a more "humane option" and theorized it would be similar to what passengers feel when a plane depressurizes and they pass out.
Critics such as American Civil Liberties Union Alabama spokesman Jose Vazquez disagreed.
"Our state lawmakers should be committed to the constitutional principle that cruel and unusual punishment should not be inflicted," he said. "Since there have been no executions performed anywhere with nitrogen, there's no way to ensure that this method would not be cruel. Instead, Alabama is turning the death penalty into state-sponsored experimentation on human beings."
The American Veterinary Medical Association's euthanasia guidelines said inert gas hypoxia is acceptable to kill chickens, turkeys, and pigs under certain conditions but that it is not recommended for other mammals.
Robert Dunham, the Death Penalty Information Center's executive director, echoed Vazquez's concerns.
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"It is completely untested," he said, adding that no state has released its protocol for describing exactly how the execution would be carried out.
The use of nitrogen hypoxia as a form of execution has also been approved in Oklahoma and Mississippi, though neither has used it yet.