After its first torturous execution of Kenny Smith by lethal injection failed in 2022, Alabama now plans to use a never-before-used method—nitrogen gas—to put Mr. Smith to death on January 25.
Attempting Second “Execution” Challenged as Unconstitutional
Mr. Smith is challenging the State’s second attempt to put him to death after he has already suffered through a botched execution attempt last year. There are serious questions about whether it is unconstitutional to allow Alabama officials to try to execute him again after prison staff previously inserted needles into his arms and hands for nearly two hours, penetrating his muscles and causing severe and ongoing physical and psychological pain.
In past cases, 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 is cruel to force Mr. Smith to face execution twice because Alabama officials did not—through no fault of Mr. Smith—complete the first execution.
There is no doubt that allowing Alabama a second attempt to put Mr. Smith to death is unusual—it would be the only time in 75 years.
As Mr. Smith’s lawyers argued, “[I]f Alabama proceeds with its planned execution attempt, it will be only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt.”
In a petition to the U.S. Supreme Court, Mr. Smith contended 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. The request for review by the Supreme Court was denied on January 24.
Execution Using Unproven, Never Before Used Method
On November 1, 2023, a divided Alabama Supreme Court granted the attorney general’s motion to set a date to execute Kenny Smith by nitrogen asphyxiation, a method that has never been used.
The order authorized the Alabama Department of Corrections to execute Mr. Smith within a time frame set by the governor, and a week later, Alabama Gov. Kay Ivey set the execution for January 25, 2024.
Alabama has been trying to figure out how to kill someone by forcing them to breathe pure nitrogen gas since lawmakers authorized the method in 2018.
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.
Mr. Smith challenged the untested, unproven method, raising questions about the risk of harm and death to correctional staff and others involved in the execution and arguing that execution by nitrogen suffocation could be torturous and horrific because it is untested and has never been used to carry out an execution.
His lawyers wrote that the State is forcing Mr. Smith to be a “test subject for this novel and experimental method.”
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. Vomiting is a known side effect of oxygen deprivation, and Mr. Smith’s undisputed post-traumatic stress disorder—caused by Alabama’s first failed attempt to execute him—is causing him to persistently vomit.
But rather than postpone the execution until Mr. Smith’s vomiting is resolved, the State changed its protocol at the last minute and announced it will deny Mr. Smith all solid food after 10 am on Thursday. Because a recent change to Alabama law gives prison officials until 6 am on Friday to carry out the execution, Mr. Smith could be denied food for a full 20 hours prior to the execution.
The district court denied relief, and the Eleventh Circuit Court of Appeals denied Mr. Smith’s appeal on January 24 in a 2-1 decision.
Circuit Judge Jill Pryor dissented, finding that the record shows that Mr. Smith is likely to vomit; if he does, the “vomit will flood his face, both nose and mouth;” and inhaling vomit and asphyxiating causes “painful physical sensations of choking and suffocation.”
Concluding that “this cascade of likely events is, in turn, likely to prolong or superadd pain and suffering to Mr. Smith’s death,” she determined that Mr. Smith had shown a substantial likelihood of success on the merits of his Eighth Amendment claim and should be granted a stay of execution. She wrote:
The State of Alabama seeks to test an entirely new method of execution on Kenny Smith, opting for him to die not by lethal injection, but by nitrogen gas. Alabama proposes to do so even though its new nitrogen gas protocol has never been tested and despite real doubts about the protocol’s ability to safeguard a condemned person’s constitutional rights. And—critically, as I view this case—Alabama has chosen this condemned person, this protocol, and this moment, even though Mr. Smith is suffering mentally and physically from the posttraumatic stress Alabama caused when it botched its first attempt to execute him in 2022.
What is all of this likely to look like when the time comes for Mr. Smith to face his death again? He will be escorted by his executioners to the same execution chamber that was previously used for the first attempted execution. Inside the chamber, he will be strapped to a gurney, the same one that held him for hours as he endured excruciating pain just over a year ago. Nitrogen gas will begin to flow into the mask. Under these conditions Mr. Smith’s undisputed posttraumatic stress disorder, which no one contests is causing him to persistently vomit, will be at its absolute peak. At the same time, he will experience oxygen deprivation, a known effect of which is vomiting. If Mr. Smith vomits, his executioners will not intervene—they have told us so—even as vomit fills the mask and flows into Mr. Smith’s nose and mouth. Then, at last, Mr. Smith’s body will succumb to the effects of oxygen deprivation, asphyxiation, or both. He will die. The cost, I fear, will be Mr. Smith’s human dignity, and ours.
Mr. Smith’s lawyers appealed to the U.S. Supreme Court, which denied a stay of execution shortly before 7 pm over the dissents of three justices.
“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,” Justice Sonia Sotomayor wrote. “The world is watching.”
She wrote that Mr. Smith should be allowed to complete discovery and litigate the merits of his claims. “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.”
“Not long ago, this Court remarked that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.” Hall v. Florida, 572 U. S. 701, 708 (2014). This case shows how that protection can be all too fragile. Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain. The first time, Smith’s predictions came true. He “survived to describe the intense fear and pain [he] experienced during Alabama’s tortuous attempts to execute [him].” Barber, 600 U. S., at ___ (SOTOMAYOR, J., dissenting from denial of application for stay). This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit. I sincerely hope that he is not proven correct a second time.”
Kenny Smith Survived Torturous Execution Attempt
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.
Two hours later, the stay of execution issued by the Eleventh Circuit was vacated by the U.S. Supreme Court over the dissent of three justices, and the State was free to execute Mr. Smith.
No one outside prison staff—not the public or the person’s lawyer—is allowed to observe when prison guards try to insert an IV line at the beginning of an execution.
As predicted by Mr. Smith and the lower federal courts, the State’s secretive process for managing executions produced yet another torturous, failed execution attempt.
Execution Scheduled Despite Jury Life Verdict
Kenny Smith’s jury decided by a vote of 11-1 that he should be sentenced to life in prison without the possibility of parole. But his elected trial judge overrode the jury’s verdict and imposed the death penalty. And even though Alabama abolished judge override in 2017, the State still plans to execute Mr. Smith.
Kenny Smith was just 22 years old when he was charged with capital murder in the 1988 killing of a woman whose husband was involved in an affair, had incurred substantial debts, and had taken out a large insurance policy on her. A week after the murder, when the investigation started to focus on the husband as a suspect, he committed suicide.
Prosecutors argued that Mr. Smith, along with two other men, was paid by the husband to kill his wife. Mr. Smith was convicted of capital murder for hire.
At the sentencing hearing, the jury found one aggravating circumstance (that it was a murder for hire) and several mitigating circumstances, including his young age, that he had no significant criminal history, he appeared to be remorseful for what he had done, his good conduct in jail and in counseling family members and others, and that he was neglected and deprived as a young child.
Jurors weighed the evidence and determined that the mitigating factors outweighed the single aggravator. The jury voted 11-1 to impose life imprisonment without parole. The sentencing judge, however, rejected their nearly unanimous verdict and condemned Mr. Smith to death.
No one whose jury voted for life has been executed in Alabama since override was abolished.
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.