Alabama's Top Court OKs New Execution Method

Decision clears the way for state to execute Kenneth Smith with nitrogen gas
By Newser Editors and Wire Services
Posted Sep 26, 2023 1:45 PM CDT
Updated Nov 2, 2023 7:24 AM CDT
Death Row Inmate Doesn't Want to Be 'Test Subject'
Kenneth Smith, who was convicted in a 1988 murder-for-hire slaying of a preacher's wife.   (Alabama Department of Corrections via AP, File)
UPDATE Nov 2, 2023 7:24 AM CDT

A divided Alabama Supreme Court said the state can execute an inmate with nitrogen gas, a method that has not previously been used to carry out a death sentence in the US. The all-Republican court in a 6-2 decision Wednesday granted the state attorney general's request for an execution warrant for Kenneth Eugene Smith, the AP reports. The exact date of the execution will be set later by Alabama Gov. Kay Ivey. The decision moves Alabama closer to being the first state to attempt an execution with nitrogen gas, although there is likely to be additional litigation over the proposed new execution method. Three states—Alabama, Oklahoma, and Mississippi have authorized nitrogen hypoxia as an execution method but no state has attempted to use it.

Sep 26, 2023 1:45 PM CDT

An Alabama inmate would be the test subject for the "experimental" execution method of nitrogen hypoxia, his lawyers argued, as they asked judges to deny the state's request to carry out his death sentence using the new method. In a court filing, attorneys for Kenneth Eugene Smith asked the Alabama Supreme Court to reject the state attorney general's request to set an execution date for Smith using the proposed new execution method. Nitrogen gas is authorized as an execution method in three states, reports the AP, but it has never been used to put an inmate to death. Smith's attorneys argued the state has disclosed little information about how nitrogen executions would work, releasing only a redacted copy of the proposed protocol.

"The state seeks to make Mr. Smith the test subject for the first ever attempted execution by an untested and only recently released protocol for executing condemned people by the novel method of nitrogen hypoxia," Smith's attorneys wrote. Under the proposed method, hypoxia would be caused by forcing the inmate to breathe only nitrogen, depriving them of oxygen needed to maintain bodily functions and causing them to die. Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. While proponents of the new method have theorized it would be painless, opponents have likened it to human experimentation.

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Alabama authorized nitrogen hypoxia in 2018, but has not attempted to use it until now. Oklahoma and Mississippi have also authorized the method, but haven't used it. Smith was convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett in Alabama's Colbert County. Prosecutors said Smith was one of two men who were each paid $1,000 to kill Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance. The other man convicted in the killing was executed in 2010. Charles Sennett, the victim's husband and a Church of Christ pastor, killed himself when the investigation began to focus on him as a possible suspect, according to court documents.

(More nitrogen hypoxia stories.)

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