After its first torturous, failed execution of Kenny Smith by lethal injection, Alabama now plans to try again. A second execution date has been scheduled for January 25, and the state supreme court has been asked to conclude that the attempt to execute Mr. Smith twice is cruel and unusual punishment.
On November 17, 2022, Alabama prison officials strapped Kenny Smith to a gurney for over an hour while unnamed state corrections staff poked and prodded him in an effort to access his veins so that toxic chemicals could be injected that would kill him. The botched execution came after Mr. Smith had been told for weeks that he would die on November 17.
Shortly before midnight, Alabama officials were forced to stop the continued attempts to execute Mr. Smith when they could not complete the process, making him the second person in less than two months to survive the torture of a failed execution by the State of Alabama.
Prior to the State’s first attempt to execute him, Mr. Smith had argued that Alabama could not be trusted to reliably carry out his execution without an unacceptable risk of unnecessary torture in violation of the Eighth Amendment.
He pointed to the State’s shocking track record of three botched executions in the preceding four years—the failed attempt to execute Alan Miller on September 22, the protracted and gruesome execution of Joe James two months before that, and the failed execution of Doyle Hamm in 2018, where prison staff could not set an IV line after two and a half hours.
After reviewing the evidence, the Eleventh Circuit Court of Appeals agreed with Mr. Smith and stayed his execution, expressing concern that the State could not competently carry out the execution. But the U.S. Supreme Court vacated the stay and allowed the State to subject Mr. Smith to a torturous failed execution attempt.
New Legal Argument That Attempting Second “Execution” Is Unconstitutional
Mr. Smith is now challenging the State’s second attempt to put him to death. He argues that it is unconstitutional to allow Alabama officials to try to execute him again after prison staff repeatedly inserted needles into his arms and hands for nearly two hours, penetrating his muscles and causing severe and ongoing physical and psychological pain.
Justices of the U.S. Supreme Court have stated that, unlike failed executions that are the result of an “isolated mishap” or “unforeseeable accident,” where the State makes “a series of abortive attempts at [execution] or even a single, cruelly willful attempt,” a second attempt to execute the person would be barred as cruel and unusual punishment.
In other words, in light of the first tortuous failed execution in this case, it would be cruel to force Mr. Smith to face execution twice because Alabama officials did not—through no fault of Mr. Smith—complete the first execution.
In a petition to the Alabama Supreme Court, Mr. Smith contends that Alabama should be barred from a second execution attempt because it failed to even investigate its previous botched executions and made no effort to prevent the same problems during Mr. Smith’s execution, resulting in a cruelly willful and torturous execution attempt.
“Alabama has already subjected Kenny Smith to the physical anguish and mental torment of execution,” said EJI Executive Director Bryan Stevenson. “It is both shocking and cruel to allow Alabama to put him through the psychological torture of another execution date.”
Use of an Experimental Method of Execution
The risk of unnecessary suffering is heightened by the fact that Alabama intends to use an experimental, never-before-tried method to put Mr. Smith to death by forcing him to breathe pure nitrogen gas.
Breathing pure nitrogen causes death by depriving the body of oxygen. There is no scientific evidence on using it to execute people, but nitrogen hypoxia has long been rejected as an acceptable method for euthanizing animals.
Oklahoma and Mississippi authorized execution by nitrogen gas even earlier than Alabama, but neither state has developed a protocol for using the method, which carries the risk of asphyxiating prison employees, family members, and other people in the prison by accidental exposure to the colorless, odorless gas.
With its long history of “failed and flawed executions and execution attempts,” EJI senior attorney Angie Setzer told the Associated Press, “Alabama is in no position to experiment with a completely unproven and unused method for executing someone.”
“No state in the country has executed a person using nitrogen hypoxia,” Ms. Setzer said. Allowing Alabama to experiment with a never before used method, she added, “is a terrible idea.”
Kenny Smith’s Jury Verdict Was for Life Without Possibility of Parole
Mr. Smith’s jury overwhelmingly rejected the death penalty in his case, deciding by an 11-1 vote that he should be sentenced to life imprisonment without parole. The trial court overruled the jury and sentenced Mr. Smith to death under a judicial override law that was abolished in 2017.
Alabama lawmakers have proposed legislation to apply the new law retroactively, but state prosecutors have argued the new law does not prevent them from executing people like Mr. Smith who were sentenced to death by elected judges who overrode jury life verdicts prior to 2017.
“Like the eleven jurors who did not believe Mr. Smith should be executed, we remain hopeful that those who review this case will see that a second attempt to execute Mr. Smith—this time with an experimental, never-before-used method and with a protocol that has never been fully disclosed to him or his counsel—is unwarranted and unjust,” Mr. Smith’s attorney Robert Grass told the Associated Press.
Indeed, barring a second execution attempt would effectively result in a life-without-parole sentence for Mr. Smith, consistent with the jury’s verdict in his case.