When the State of Alabama attempted to execute Kenny Smith on November 17, 2022, it had ample evidence that prison staff could not reliably carry out a lethal injection execution.
Two months earlier, Alabama prison staff had tried and failed to execute Alan Miller by lethal injection, repeatedly prodding him with an IV needle and hanging him upside-down for hours in a desperate attempt to find a vein.
Two months before that, Alabama struggled to carry out the execution of Joe James by lethal injection. The execution team again spent several hours painfully attempting to gain IV access, repeatedly inserting needles into Mr. James before they were able to find a vein.
These two botched executions followed Alabama’s similar failed execution of Doyle Hamm in 2018, also by lethal injection.
As predicted, in 2022, Kenny Smith suffered a night of torture.
Prison officials entered the execution chamber and began repeatedly jabbing Mr. Smith’s arms and hands with needles. Mr. Smith told them they were sticking the needles into his muscle, causing intense pain. Unable to find a vein, the officials then tilted Mr. Smith in an inverse crucifixion position while he was strapped to the gurney and left him there for several minutes.
An unidentified member of the execution team then started repeatedly stabbing Mr. Smith’s collarbone area with a large needle in an attempt to begin a central line IV in his subclavian artery.
Throughout this hours-long process, Mr. Smith was terrified and writhing in agony. Just before midnight, the execution team suddenly stopped sticking him with needles and returned him to his cell.
Mr. Smith’s ordeal bears striking similarity to a “mock execution,” a method of psychological abuse by which a prisoner is made to believe that he is about to be executed, only to eventually be returned to his cell instead.
The State of Alabama told Mr. Smith for weeks that he was going to die on November 17, gave him a last meal and last words, strapped him to a gurney, and started jabbing him with needles to administer lethal drugs but then stopped without actually killing him. Mr. Smith thought that every minute during that horrific night would be his last. In several important respects, Mr. Smith experienced what was effectively a “mock execution.”
Mock executions constitute torture under federal and international law. Federal courts have found that when captors in countries like Iraq, Iran, Guatemala, and Cuba make prisoners believe they are about to be executed, but then they aren’t killed, that constitutes torture.
The U.S. military prohibits the use of mock executions in interrogations because the practice violates U.S. obligations under the Geneva Conventions.
The Russian military, by contrast, has allegedly subjected people in occupied Ukraine to mock executions—which the U.S. Justice Department, U.S. Ambassador to the United Nations, and President Joe Biden all have denounced as torture.
Unlike a traditional mock execution, a failed execution typically involves officials who intend to kill, although the torture and the suffering for the victim are no different.
With three prior botched executions, there are serious questions about whether the State of Alabama had a good faith basis to believe it could successfully execute Mr. Smith. Alabama officials had been on notice for months that the execution team could not reliably gain the IV access required to carry out a lethal injection. Federal courts ruled that Mr. Smith’s execution should be stayed because of profound doubts and lingering questions about Alabama’s lethal injection executions.
But the State faces few consequences when it botches an execution, so after the U.S. Supreme Court vacated the lower court stay without explanation, Alabama officials proceeded with the attempt anyway.
In 2004, after the torture of prisoners at Abu Ghraib, the U.S. government said that an act may constitute torture when the perpetrator knows the act will likely cause the victim severe mental or physical suffering, even if torture is not the perpetrator’s primary intent.
It is at least arguable that, based on the three executions preceding Mr. Smith’s, Alabama officials knew or should have known their actions on November 17 would likely cause Mr. Smith severe mental or physical suffering.
“Most people can’t possibly imagine the agony of being credibly told that on this date, at this hour you will be killed, only to go through the process of an execution and be physically abused before being sent back to your cell,” stated EJI Director Bryan Stevenson. “The State should at least be barred from a second ‘execution.’”
The State of Alabama currently plans to make a second execution attempt on Mr. Smith on January 25, 2024.