SCOTUS rejects Kenneth Eugene Smith’s execution stay request, 11th Circuit Court denies appeal
(WHNT) — The United States Supreme Court rejected Kenneth Eugene Smith’s request for a stay of execution and a federal court has denied his appeal.
Smith, convicted in connection to a 1988 murder-for-hire killing in Colbert County, is set to be executed by nitrogen hypoxia 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.
Click here to read more about what’s led to Kenneth Smith’s execution
This will be the second time Smith is up for execution after Alabama failed to execute him by lethal injection in 2022.
In the request for a stay of execution, lawyers for Smith raised the question, “Does a second attempt to execute a condemned person following a single, cruelly willful attempt to execute that same person violate the prohibition against cruel and unusual punishments under the Eighth and Fourteenth Amendments to the United States Constitution?”
SCOTUS denied Smith’s request for a stay on Wednesday, January 24.
Also on Wednesday, the 11th Circuit Court of Appeals denied Smith’s appeal of a ruling by U.S. District Court Judge R. Austin Huffaker, Jr. on his request for a preliminary injunction. A preliminary injunction is “temporary relief that preserves the ‘status quo’ until the courts decide on the merits of the case.”
However, 11th Circuit Judge Jill Pryor, dissented saying, “The district court said Mr. Smith’s claim that he is likely to vomit during the execution while nitrogen is flowing is ‘possible only upon the occurrence of a cascade of unlikely events.’ But the record shows that Mr. Smith is likely to vomit, both because of the undisputed effects of oxygen deprivation and because of the undisputed activation of his posttraumatic stress disorder from the first botched execution attempt, of which his persistent vomiting is a documented symptom.”
“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.
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.
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 to carry it out until fall of 2023.
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.
Attorneys have 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.
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