What led to Colbert County convict facing nitrogen hypoxia execution
ALABAMA (WHNT) — Kenneth Eugene Smith is set to become the first known person to be executed by nitrogen hypoxia later this week.
The State of Alabama plans to execute Smith using nitrogen gas during a 30-hour time frame beginning at midnight on Thursday, January 25, 2024, and expiring at 6:00 a.m. on Friday, January 26, 2024.
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This will be the second time Smith is up for execution after Alabama failed to execute him by lethal injection in 2022.
Alabama is one of three states, alongside Oklahoma and Mississippi, that authorized the use of nitrogen hypoxia in executions. Alabama approved the method in 2018, but did not have an approved protocol until August 2023.
The protocol involves being fitted with a mask and inhaling nitrogen gas, but other details are unavailable as much of the protocol is redacted from filings. Nitrogen is an inert gas that makes up about 78% of the air humans breathe. The method would replace breathable air with pure nitrogen causing Smith to die from lack of oxygen.
New 19’s Lauren Layton is the only broadcast journalist selected to witness the execution and the only North Alabama TV reporter who will be at William C. Holman Correctional Facility.
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With less than a day until scheduled Smith’s execution, News 19 reviewed this steps that led to this planned, unprecedented execution.
Murder-for-hire killing
Smith was charged for the murder-for-hire-killing of Elizabeth Dorelene Sennett in Colbert County in 1988. Court records show Smith says he was paid $1,000 for the killing by the victim’s husband, Colbert County minister Charles Sennett Sr.
Documents say the county coroner testified that Elizabeth Sennett was stabbed eight times in the chest and once on each side of the neck. She also has numerous other abrasions and cuts.
Charles Sennett killed himself before facing charges.
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Smith said two other men, Billy Gray Williams and John Forrest Parker, were also hired to help with the murder.
In a statement to police at the time, Smith detailed how he was approached by Williams about the scheme and eventually agreed to take part. He said that leading up to the murder he met with Charles Sennett multiple times to plan the killing.
Smith said Parker was the one to stab Elizabeth Sennett and claimed he had never stabbed her himself.
Parker was also convicted and was executed in 2010. Williams was convicted and sentenced to life without parole. According to reporting from AL.com, Williams died in prison in 2020 from an illness.
Conviction
Smith was initially convicted of capital murder in 1989 and the jury, at the time, recommended he be sentenced to death but that conviction was overturned on appeal. He was retried and convicted of capital murder again in 1996.
A jury recommended Smith be sentenced to life in prison in an 11-1 vote, but the judge in the case overrode the decision and sentenced him to death.
Alabama no longer allows judges to override a jury decision on death sentences. The state changed that rule in 2017 but it does not affect inmates that were already on death row at the time.
Smith’s first attempted execution
In August 2022, Attorney General Steve Marshall sought an execution date for Smith. Smith’s lawyers then filed a challenge, saying his preferred method of execution was nitrogen hypoxia, not lethal injection.
The state argued that method was ready and ultimately moved forward with plans to execute Smith by lethal injection on Nov. 17, 2022.
That attempt failed, however, when technicians were unable to locate a second suitable vein for the procedure. The state then began a “central line procedure” but did not have time to complete it, ADOC Commissioner John Hamm said.
The State of Alabama abandoned its attempt to execute Kenneth Smith at approximately 11:21 p.m., according to the state’s prisons commissioner.
Review of execution process in Alabama
The state’s failed attempt to execute Smith was the third botched execution attempt in 2022. That led to a “top-to-bottom” review of Alabama’s execution process. Governor Ivey announced the effective moratorium on executions in the state on November 21.
Ivey asked the state attorney general’s office to withdraw motions to set execution dates for Alan Eugene Miller and James Edward Barber and not seek any more execution dates until the review was complete.
On January 13, 2023, the Alabama Supreme Court changed procedures and moved to a ‘time frame’ structure, giving the governor the power to decide how long the state’s executioners can attempt to end an inmate’s life and as a result, the state more time to carry out a death sentence.
Previously, the court issued a death warrant authorizing the state to carry out the execution on a single day.
Moving toward the second execution attempt
Court documents show that after the failed execution, Smith continued to say in court that he preferred nitrogen hypoxia.
On August 25, the state moved to drop litigation regarding Smith’s execution by lethal injection – saying that the Alabama Department of Corrections (ADOC) and Marshall agreed to never attempt to execute Smith with that method again.
At the same time, Marshall moved to reset Smith’s execution, this time by nitrogen hypoxia.
Smith’s legal team has since moved to block his execution by nitrogen hypoxia, arguing that:
The decision to execute him using that method is arbitrary as he has not exhausted his appeals.
The protocol could fail and leave him with permanent injuries.
The protocol would interfere with his religious liberties by not allowing him to pray audibly at the time of his death.
Attorneys also argued the state is trying to use Smith as a “test subject” for a “novel and experimental” execution method. They’ve also said the fact Smith was chosen as the first person to experience it should be fully considered by a court before the execution moves forward.
His attorneys say the procedure could cause nausea and possibly leave Smith to choke on his own vomit.
The attorney general’s office has called those concerns speculative and said the process will indeed cause unconsciousness in seconds – and death within minutes.
U.S. District Court Judge R. Austin Huffaker, Jr. rejected those arguments in a ruling on Smith’s request for a preliminary injunction on Jan. 10. A preliminary injunction is temporary relief that preserves the ‘status quo’ until the courts decide on the merits of the case.
In that ruling, Huffaker noted the state disagreed with Smith’s argument about the possibility of permanent injuries and stated that Smith’s attorney had previously argued successfully that “nitrogen hypoxia was a feasible, readily implemented alternative method of execution.”
Huffaker ultimately said Smith is not guaranteed a painless death, and that his legal team has failed to show that the current procedure would constitute cruel and unusual punishment.
Smith’s lawyers appealed Huffaker’s decision to a federal appeals court and oral arguments were heard in that appeal on Jan 19. The 11th Circuit Court denied that preliminary injunction appeal on Wednesday evening.
“Supreme Court precedent is clear that a new method of execution does not automatically establish a claim for cruel and unusual punishment. There is no doubt that death by nitrogen hypoxia is both new and novel. Because we are bound by Supreme Court precedent, Smith cannot say that the use of nitrogen hypoxia, as a new and novel method, will amount to cruel and unusual punishment in violation of the Eighth Amendment by itself. Rather, Smith must show why this method will cause him “a demonstrated [substantial] risk of severe pain,” one circuit court judge said in the court’s opinion.
The United States Supreme Court rejected Kenneth Eugene Smith’s request for a stay of execution on Wednesday afternoon.
Smith’s representation filed another request for a stay with the 11th Circuit Court of Appeals following SCOTUS’s decision, noting that the Alabama Department of Corrections (ADOC) has made a ‘last minute’ change to its protocol for carrying out the execution using the new method.
Attorneys said Terry Raybon, the warden of Holman Correctional Facility, announced that change via a declaration submitted to the district court on Tuesday evening.
They say Raybon states in the declaration that Smith ‘will not be allowed any solid food after 10:00 a.m., and he will only be allowed clear liquids up until 4:00 p.m. with the execution scheduled to begin no sooner than 6:00 p.m.’
“It made that change in response to new evidence that Mr. Smith has been vomiting repeatedly, as shown in ADOC’s own medical records—a likely result of the posttraumatic stress disorder (PTSD) from which Mr. Smith suffers as a result of ADOC’s previous failed attempt to execute him,” Smith’s attorney’s argue.
As of 6:45 p.m. on Wednesday, the 11th Circuit Court had not ruled on that request for a stay.
The Associated Press and News 19’s sister station CBS42 contributed to this report.
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