The Alabama Department of Corrections announced Tuesday night that it will deny Kenny Smith all solid food for up to 20 hours starting at 10 am on Thursday, January 25, the day of his scheduled execution.
The change was announced after lawyers reported that Mr. Smith has been vomiting continuously for several days. The vomiting is likely due to post-traumatic stress disorder, they explained, caused by Alabama’s first failed attempt to execute Mr. Smith.
In November 2022, Mr. Smith was strapped to a gurney for over an hour and tortured as prison staff jabbed him with needles and attempted a central line procedure. When they were unable to establish IV access, they returned Mr. Smith to his cell.
Mr. Smith’s attorneys have filed an emergency motion with the U.S. Court of Appeals for the Eleventh Circuit, arguing that a stay of execution is necessary.
Mr. Smith has argued for weeks that execution by nitrogen suffocation could be torturous and horrific because it is untested and has never been used to carry out an execution.
At an evidentiary hearing in December, Mr. Smith’s counsel presented expert evidence that Mr. Smith could vomit while fitted with a mask and aspirate or choke to death on his own vomit.
The State has been on notice for weeks that the potential for vomiting creates a particular risk of suffering during an execution by nitrogen gas asphyxiation, and in federal court, the State has not refuted reports about Mr. Smith’s current medical status or his vomiting.
But rather than postpone the execution until Mr. Smith’s vomiting is resolved, the State changed its protocol at the last minute to deprive Mr. Smith of any food after 10 am on Thursday in order to preserve their ability to execute Mr. Smith this week.
A recent change to Alabama law gives prison officials until 6 am on Friday to carry out the execution, which means Mr. Smith could be denied food for a full 20 hours prior to the execution.
The U.S. District Court for the Middle District of Alabama denied Mr. Smith’s motion for a stay and he has filed an emergency motion with the federal appeals court.