The Supreme Court has sided with an Alabama death row inmate who wants to be put to death by nitrogen gas after his attempted lethal injection was called off due to a faulty IV.
Judges rejected an appeal by Alabama officials against a lower court’s decision to reinitiate Kenneth Smith’s trial to stop the state from putting him to death by lethal injection.
Smith is instead looking to be executed using nitrogen gas. Conservative justices Clarence Thomas and Samuel Alito disagreed with the decision to allow Smith’s challenge to proceed.
Kenneth Eugene Smith (left) was convicted in 1988 of the murder-for-hire of preacher Elizabeth Sennett’s wife (right). Smith, 57, argued that the state should not try to execute him again by lethal injection, but instead should use nitrogen gas.
Kenneth Smith filed his lawsuit in August 2020, alleging that the state’s lethal injection protocol would expose him to excessive pain. Pictured is the Alabama Lethal Injection Chamber at Holman Correctional Facility in Atmore
Alabama Attorney General Steve Marshall, a Republican, is disappointed with the court’s action and his office is reviewing it to determine its next steps, a Marshall spokesperson said. Smith’s attorney, Robert Grass, declined to comment.
In November, a majority of judges cleared the way for the execution of Smith, who was sentenced to death for his role in a 1988 murder-for-hire plot.
Smith, 57, filed his lawsuit in federal court last August — months before his botched execution.
The lawsuit alleged that the state’s lethal injection protocol would subject him to cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution due to problems Alabama officials have had in putting convicted inmates to death. before, including access to veins to insert intravenous lines.
The method in Alabama posed an “intolerable risk of torture, cruelty, or substantial pain,” Smith’s lawsuit said.
At issue in the case is whether, under Supreme Court precedent, a death row inmate can argue that a method of execution known as nitrogen hypoxia that has been approved by the Alabama legislature but not yet used by its Department of Corrections is a legally available alternative.
Smith seeks to compel Alabama to execute him by inhaling nitrogen, a gas that would starve his body of oxygen.
Smith said the protocol would significantly reduce the risk of aborted executions or pain, such as a feeling of drowning or choking.
A judge dismissed Smith’s lawsuit, but on November 17, the day of his scheduled execution, the 11th United States Circuit Court of Appeals, based in Atlanta, revived his case, allowing Smith to file an amended complaint .
The 11th Circuit also stayed his execution in a separate decision, but after the state appealed to the Supreme Court, the judges allowed him to continue. The three liberal justices of the Supreme Court, made up of nine members, expressed their disagreement with this decision.
That night, state officials made several unsuccessful attempts to place necessary IV lines or a central line in his collarbone area before calling off the execution after 11 p.m.
Elizabeth Sennett had two sons, Chuck and Mike, and several grandchildren. She was murdered when her husband, Reverend Charles Sennett, hired a man to assassinate her. He was put to death in 2010. Charles Sennett committed suicide a week after the murder of his wife
Sennett’s husband, who was the pastor of the Westside Church of Christ in Sheffield, killed himself a week after her death when the murder investigation began to focus on him as a suspect, court documents show.
‘M. Smith’s worst fears began to unfold as his federal trial had claimed,” his attorneys said in court papers, adding that the experience “subjected him to hours of torture while attempting to execute and had exposed him to the severe mental anguish of a mock execution.
John Forrest Parker, the other man convicted of the murder, was executed in 2010
Alabama Governor Kay Ivey, a Republican, announced a review of the state’s execution proceedings after Smith’s case, which was the third time Alabama has called off an execution since 2018 after concerns over laying of intravenous lines. Officials completed their review in February.
Smith was convicted in 1989 of the murder of Elizabeth Dorlene Sennett the previous year after he and an accomplice were hired by her husband Charles Sennett, a Christian minister who had taken out a large insurance policy for his wife, according to the prosecutors. She was stabbed several times and beaten with a blunt object.
Charles Sennett later committed suicide. Smith’s accomplice was also convicted and sentenced to death, with the execution taking place in 2010.
Smith’s case is not a challenge to the death penalty itself.
Some liberal justices have raised questions about the death penalty in the United States, but the court, with its 6-3 conservative majority, seems unlikely to back down on its use.
