Alabama executes a man with nitrogen gas, the first time the new method has been used

ATMORE, Ala. (AP) — Alabama has executed a man with nitrogen gas, putting him to death with a first-of-its-kind method that once again put the U.S. at the forefront of the debate over capital punishment. Officials said Kenneth Eugene Smith was pronounced dead at 8:25 p.m. Thursday (Jan. 25, 2024) at an Alabama prison. It marked the first time a new execution method has been used since lethal injection was introduced in 1982. The execution came after a last-minute legal battle in which Smith’s attorneys said the state was making him the test subject for an experimental execution method that could violate the constitutional ban on cruel and unusual punishment. Smith was one of two men convicted in the 1988 murder-for-hire slaying of Elizabeth Sennett, a pastor’s wife.

ATMORE, Ala. (AP) — Alabama executed a convicted murderer with nitrogen gas Thursday (Jan. 25, 2024), putting him to death with a first-of-its-kind method that once again placed the U.S. at the forefront of the debate over capital punishment. The state said the method would be humane, but critics called it cruel and experimental.

Officials said Kenneth Eugene Smith, 58, was pronounced dead at 8:25 p.m. at an Alabama prison after breathing pure nitrogen gas through a face mask to cause oxygen deprivation. It marked the first time that a new execution method has been used in the United States since lethal injection, now the most commonly used method, was introduced in 1982.

The execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.

In a final statement, Smith said, “Tonight Alabama causes humanity to take a step backwards. … I’m leaving with love, peace and light.”

He made the “I love you sign” with his hands toward family members who were witnesses. “Thank you for supporting me. Love, love all of you,” Smith said.

Alabama Gov. Kay Ivey said the execution was justice for the murder-for-hire killing of 45-year-old Elizabeth Sennett in 1988.

“After more than 30 years and attempt after attempt to game the system, Mr. Smith has answered for his horrendous crimes,” Ivey said in a statement. “I pray that Elizabeth Sennett’s family can receive closure after all these years dealing with that great loss.”

Mike Sennett, the victim’s son, said Thursday night that Smith “had been incarcerated almost twice as long as I knew my mom.”

“Nothing happened here today is going to bring Mom back. It’s kind of a bittersweet day. We are not going to be jumping around, whooping and holler, hooray and all that,” he said. “I’ll end by saying Elizabeth Dorlene Sennett got her justice tonight.”

The state had previously attempted to execute Smith in 2022, but the lethal injection was called off at the last minute because authorities couldn’t connect an IV line.

The execution came after a last-minute legal battle in which his attorneys contended the state was making him the test subject for an experimental execution method that could violate the constitutional ban on cruel and unusual punishment. Federal courts rejected Smith’s bid to block it, with the latest ruling coming Thursday night from the U.S. Supreme Court.

Justice Sonia Sotomayor, who along with two other liberal justices dissented, wrote, “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before. The world is watching.”

The majority justices did not issue any statements.

The state had predicted the nitrogen gas would cause unconsciousness within seconds and death within minutes. State Attorney General Steve Marshall said late Thursday that nitrogen gas “was intended to be — and has now proved to be — an effective and humane method of execution.”

Asked about Smith’s shaking and convulsing on the gurney, Alabama corrections Commissioner John Q. Hamm said they appeared to be involuntary movements.

“That was all expected and was in the side effects that we’ve seen or researched on nitrogen hypoxia,” Hamm said. “Nothing was out of the ordinary from what we were expecting.”

Smith’s spiritual adviser, the Rev. Jeff Hood, said the execution did not match the state attorney general’s prediction in court filings that Smith would lose consciousness in seconds followed by death within minutes.

“We didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for their life,” said Hood, who attended the execution.

Some doctors and organizations had expressed alarm about the method, and Smith’s attorneys asked the Supreme Court to halt the execution to review claims that it violates the constitutional ban on cruel and unusual punishment and deserved more legal scrutiny before it was used on a person.

“There is little research regarding death by nitrogen hypoxia. When the State is considering using a novel form of execution that has never been attempted anywhere, the public has an interest in ensuring the State has researched the method adequately and established procedures to minimize the pain and suffering of the condemned person,” Smith’s attorneys wrote.

In her dissent, Sotomayor said Alabama has shrouded its execution protocol in secrecy, releasing only a heavily redacted version. She added that Smith should have been allowed to obtain evidence about the protocol and to proceed with his legal challenge.

“That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method,” Sotomayor wrote.

“Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” Sotomayor wrote. “I sincerely hope that he is not proven correct a second time.”

Justice Elena Kagan wrote a separate dissent and was joined by Justice Ketanji Brown Jackson.

In his final hours, Smith met with family members and his spiritual adviser, according to a prison spokesperson.

Smith ate a last meal of T-bone steak, hash browns, toast and eggs slathered in A1 steak sauce, Hood said by telephone before the execution was carried out.

“He’s terrified at the torture that could come. But he’s also at peace. One of the things he told me is he is finally getting out,” Hood said.

The execution protocol called for Smith to be strapped to a gurney in the execution chamber — the same one where he was strapped down for several hours during the lethal injection attempt — and a “full facepiece supplied air respirator” to be placed over his face. After he had a chance to make a final statement, the warden, from another room, was to activate the nitrogen gas. It would be administered through the mask for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

Hamm, the corrections commissioner, confirmed afterward that the gas was flowing for about 15 minutes.

Sant’Egidio Community, a Vatican-affiliated Catholic charity based in Rome, had urged Alabama not to go through with the execution, saying the method is “barbarous” and “uncivilized” and would bring “indelible shame” to the state. And experts appointed by the U.N. Human Rights Council cautioned they believe the execution method could violate the prohibition on torture.

Some states are looking for new ways to execute people because the drugs used in lethal injections have become difficult to find. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but no state had attempted to use the untested method until now.

Smith’s attorneys had raised concerns that he could choke to death on his own vomit as the nitrogen gas flows. The state made a last-minute procedural change so he would not be allowed food in the eight hours beforehand.

Sennett was found dead in her home March 18, 1988, with eight stab wounds in the chest and one on each side of her neck. Smith was one of two men convicted in the killing. The other, John Forrest Parker, was executed in 2010.

Prosecutors said they were each paid $1,000 to kill Sennett on behalf of her pastor husband, who was deeply in debt and wanted to collect on insurance. The husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents.

Smith’s 1989 conviction was overturned, but he was convicted again in 1996. The jury recommended a life sentence by 11-1, but a judge overrode that and sentenced him to death. Alabama no longer allows a judge to override a jury’s death penalty decision.

JANUARY 23, 2024:

MONTGOMERY, Ala. (AP) — Alabama intends to put a man to death with nitrogen gas this week unless stopped by the courts. It would be the nation’s first execution attempt with the method. Inmate Kenneth Eugene Smith is scheduled to be executed Thursday evening at a south Alabama prison. Alabama plans have a gas mask put over the 58-year-old’s face to replace his breathing air with pure nitrogen gas and kill him. The Alabama attorney general’s office says using nitrogen gas is the most painless and humane method created. But some doctors and critics say what exactly Smith will feel is unknown.

MONTGOMERY, Ala. (AP) — Alabama, unless stopped by the courts, intends to strap inmate Kenneth Eugene Smith to a gurney and use a gas mask to replace breathable air with nitrogen, depriving him of oxygen needed to stay alive, on Thursday (Jan. 25, 2024) in the nation’s first execution attempt with the method.

The Alabama attorney general’s office told federal appeals court judges last week that nitrogen hypoxia is “the most painless and humane method of execution known to man.” But what exactly Smith, 58, will feel after the warden switches on the gas is unknown, some doctors and critics say.

“What effect the condemned person will feel from the nitrogen gas itself, no one knows,” Dr. Jeffrey Keller, president of the American College of Correctional Physicians, wrote in an email. “This has never been done before. It is an experimental procedure.”

Keller, who was not involved in developing the Alabama protocol, said the plan is to “eliminate all of the oxygen from the air” that Smith is breathing by replacing it with nitrogen.

“Since the condemned person will not be breathing any oxygen, he will die,” Keller said. “It is little different than putting a plastic bag over one’s head.”

The state of Alabama has predicted in federal court filings that the nitrogen gas will “cause unconsciousness within seconds, and cause death within minutes.”

The state plans to place a “full facepiece supplied air respirator” over Smith’s face. The nitrogen would be administered for at least 15 minutes or “five minutes following a flatline indication on the EKG, whichever is longer,” according to the state protocol.

The execution would be the first attempt to use a new method since lethal injection was introduced in 1982. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method. Some states are exploring new methods as lethal injection drugs have been difficult to find.

The American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is not an acceptable euthanasia method for most mammals because the anoxic environment “is distressing.” And experts appointed by the United Nations Human Rights Council cautioned they believe the execution method could violate the prohibition on torture.

Dr. Joel Zivot, an anesthesiologist who as one of four professionals who filed the U.N. complaint that led to the warning, said Smith is at risk for seizures and choking to death on his own vomit. He said any leak under the mask could prolong the execution.

“A leak will do two things. It will potentially endanger people around. … Air could then get under the mask as well,” Zivot said. “And so the execution could be prolonged or maybe he might never die, he just could get injured.”

Much of what is recorded about death from nitrogen comes from industrial accidents — where leaks or cannister mix-ups have killed people — and from suicide attempts. The U.S. Chemical Safety and Hazard Investigation Board found 80 people were killed by nitrogen asphyxiation between 1992 and 2002.

Smith was one of two men convicted of the 1988 murder-for-hire of a preacher’s wife. Prosecutors said the men were paid $1,000 to kill Elizabeth Sennett, 45, on behalf of her husband, who wanted to collect on insurance. The coroner testified Sennett was stabbed repeatedly. Her husband killed himself when he became a suspect. John Forrest Parker, the other man convicted, was executed in 2010.

The victim’s son, Charles Sennett Jr., said in an interview with WAAY-TV that Smith “has to pay for what he’s done.” He and other family members plan to witness the execution.

“And some of these people out there say, ‘Well, he doesn’t need to suffer like that.’ Well, he didn’t ask Mama how to suffer?” the son told the station. “They just did it. They stabbed her — multiple times.”

Smith’s initial conviction was overturned. He was convicted again in 1996. The jury recommended a life sentence by 11-1, but a judge sentenced Smith to death. Alabama no longer allows a judge to override a jury’s sentencing decision in death penalty cases.

Smith is one of few people to survive a prior execution attempt. The state attempted a lethal injection in 2022, but the prison system called it off before the drugs were administered because the staff had difficulty connecting the two required intravenous lines.

Smith’s attorneys are asking courts to block the nitrogen execution, arguing that its unconstitutional for the state to make a second attempt to execute him and that the state’s plan violates the ban on cruel and unusual punishment and at least merits more scrutiny before it is used.

“It’s indefensible for Alabama officials to simply dismiss the very real risks this untested method presents and experiment on a man who has already survived one execution attempt,” Robin M. Maher, executive director of the Death Penalty Information Center, said.

The Alabama attorney general’s office noted that Smith, when previously fighting lethal injection, had suggested nitrogen as an alternative execution method. Courts require inmates challenging their execution method to suggest an alternative method.

“Now that the State is prepared to give Smith what he asked for, he objects,” the attorney general’s office said in a Monday statement.

The inmate’s spiritual adviser said Smith is afraid of what is about to happen to him.

“Presently, Kenny is sickened, deeply pained and horrified at the nitrogen hypoxia experiment that is to come,” the Rev. Jeff Hood, a death penalty opponent, said. “Despite the darkness that has descended, he tries very hard to fill every second he might have left with as much love as he can muster.”

Several protests are planned in the state. A group of faith leaders delivered a petition to the state’s governor on Monday asking her to halt the execution. “Prisoners are not guinea pigs,” the Rev. Shane Isner of First Christian Church said on the Capitol steps.

Alabama Gov. Kay Ivey told The Associated Press last week that the state was ready to proceed.

“Execution by that method was passed in 2018,” Ivey said. “The attorney general’s office and the Department of Corrections has assured us that all the protocols are in place, and we will carry out that law.”