January 25, 2024
Kenneth Smith lawyers continue to push for execution stay
Kenneth Eugene Smith was not provided with a full copy of the protocol for his execution by nitrogen hypoxia until November 2023, his lawyers have said, as they once again petitioned for a stay of execution.
In court documents filed on Thursday, lawyers said that Smith “did not endorse (and could not have endorsed) the procedures in the Protocol before he had seen them”.
“Mr Smith has not walked away from his allegation that nitrogen hypoxia is a feasible and available alternative method of execution to lethal injection. When he made the argument he had not seen ADOC’s Protocol for executing condemned people by nitrogen hypoxia,” the filing stated.
“He was only provided with a heavily redacted copy of the Protocol in late August, at the same time that the State informed him that he would be the first person subject to it and moved in the Alabama Supreme Court for authority to execute him under its procedures.
“Mr Smith did not receive an unredacted copy of the Protocol until late November when the district court ordered Respondents to produce it. Mr Smith did not endorse (and could not have endorsed) the procedures in the Protocol before he had seen them.”
The filing continued: “And, of course, the ‘devil is in the details’ of the Protocol, so his current challenge is to the procedures in the Protocol—specifically to the use of a mask to deliver nitrogen instead of other feasible and available alternatives, including a hood or a closed chamber—not to nitrogen hypoxia per se.
“When the State permitted condemned people in Alabama to elect nitrogen hypoxia as the method of their execution, ADOC adopted an election form that expressly provided that those condemned people so electing did not ‘waive [their] right to challenge the constitutionality of any protocol adopted for carrying out execution by nitrogen hypoxia.’
“Neither did Mr. Smith when he alleged that nitrogen hypoxia was a feasible and available alternative method of execution in the Lethal Injection Action.”
Smith execution method ‘thoroughly vetted’ says Governor
Alabama Governor Kay Ivey said that the method of execution for Kenneth Eugene Smith had been “thoroughly vetted” and she was “confident” that they were ready to proceed.
“Nitrogen hypoxia is the method previously requested by the inmate as an alternative to lethal injection,” Governor Ivey said in a statement.
“This method has been thoroughly vetted, and both the Alabama Department of Corrections and the Attorney General’s Office have indicated it is ready to go. The Legislature passed this law in 2018, and it is our job to implement it. I am confident we are ready to move forward.”
It comes amid ongoing debate about the method – which is previously untested.
Execution timeline
Kenneth Eugene Smith scheduled to be put to death with nitrogen gas on Thursday
Accordingly, Governor Ivey has set a 30-hour time frame for the execution to occur beginning at 12:00 a.m. on Thursday, January 25, 2024, and expiring at 6:00 a.m. on Friday, January 26, 2024. The execution will take place at the William C. Holman Correctional Facility (CF) in Atmore, Alabama.
The tentative start time will be 6:00 p.m. on the 25th. This, of course, may change based on the conclusion of the required legal proceedings.
Alabama death row inmate Kenneth Eugene Smith says he is not prepared to become the first person ever put to death by nitrogen gas.
Smith, 58, told The Guardian he has now been moved to the “death cell” in an Alabama Department of Corrections (ADOC) facility ahead of his Thursday execution, but that he is not ready to be executed using the untested method.
Smith’s attorneys have filed a request with the 11th US Circuit Court of Appeals to stop the execution because the nitrogen gas method carries the risk of prolonged death and suffering.
Additionally, his attorneys have asked the US Supreme Court to review whether the execution will violate the US Constitution. Officials previously tried to execute Smith in 2022 but failed after they were not able to insert IV lines into his system.
Now, his attorneys argue that the state might not have the right to try and put him to death a second time.
“It is uncontroverted that ADOC inflicted actual physical and psychological pain on Smith by repeatedly trying (and failing) to establish IV access through his arms, hands, and by a central line as he was strapped to a gurney for hours,” the filing said.
“Mr Smith’s was the third consecutive execution that ADOC botched or aborted for that same reason. ADOC’s failed attempt to execute Mr Smith caused him severe physical pain and psychological torment, including posttraumatic stress disorder.”
Smith said he’s not ready to be put to death with an untested treatment, given how a botched first execution attempt went.
“I am not ready for that. Not in no kind of way. I’m just not ready, brother,” Smith told the newspaper. He admitted that he’s had a recurring nightmare since the first execution attempt of being escorted back into the death chamber.
“All I had to do was walk into the room in the dream for it to be overwhelming. I was absolutely terrified,” he said. “It kept coming up.”
Discussing his upcoming execution date, he said he has dreams that “they’re coming to get me.” He currently spends most of his days being “sick in his stomach” and frequently suffers from nausea and stress.
“They haven’t given me a chance to heal,” Smith said. “I’m still suffering from the first execution and now we’re doing this again. They won’t let me even have post-traumatic stress disorder — you know, this is ongoing stress disorder.”
The inmate then presented a scenario in which a victim of abuse was forced back into an abusive situation, explaining that that’s how the new execution attempt makes him feel.
“A person who did that would probably be seen as a monster,” he said. “But when the government does it, you know, that’s something else.”
In April 1996, Smith was convicted of capital murder for his role in the death of 45-year-old Elizabeth Sennett, a pastor’s wife in Colbert County. Officials discovered that she’d been stabbed multiple times inside her home.
Smith was part of a two-person murder-for-hire scheme, which appeared to be put together by the woman’s husband. The jury voted 11 to 1 to put Smith away for life. However, the judge presiding over the case overrode the jury’s verdict and sentenced him to death.
Speaking of the crime, he said he wishes he “had done things differently.”
He added: “One second, one moment in a man’s life and that’s been the only incident — I’ve not had any incident with officers, not a single fight with inmates, in 35 years. Violence is not who I am.
“I’ve been in prison for 35 years, how have I not been punished,” he continued. “Thirty-five years. I have not gone unpunished for 35 years. I have suffered doing this. So has my family.”
Supreme court
January 18, 2024 Application (23A664) for stay of execution of sentence of death, submitted to Justice Thomas Stay of Execution
January 22, 2024 Response to application from respondent Alabama filed. Main document
January 23, 2024 Reply of Kenneth Eugene Smith in support of application submitted. Reply
January 24, 2024 Application (23A664) referred to the Court. Application (23A664) for stay of execution of sentence of death submitted to Justice Thomas and by him referred to the Court is denied. The petition for a writ of certiorari is denied.
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