25 January 2024 :
January 23, 2024 - Alabama. Kenneth Smith’s lawyers ask U.S. Supreme Court to review whether state can try twice to execute him
Lawyers for Alabama death row inmate Kenneth Eugene Smith, who is scheduled to be the 1st person ever executed by nitrogen hypoxia this week, have asked the U.S. Supreme Court to review whether the execution will violate the Constitution because it is the state’s 2nd attempt to execute Smith and because the 1st was botched for reasons the state should have foreseen.
On Thursday, Smith’s lawyers asked the U.S. Supreme Court for a stay to block the execution, scheduled to happen in a 30-hour window between 12 a.m. Thursday and 6 a.m. on Friday.
The state tried to execute Smith by lethal injection in November 2022 but called off the procedure because the execution team could not start the intravenous lines. The same thing had happened with the attempted execution of Allen Eugene Miller in September 2022. And the execution of Joe Nathan James in July 2022 was delayed for several hours and raised questions about problems with accessing his veins.
Lawyers for Smith said the state should have known it would encounter problems starting the IV lines in his execution but went ahead with the execution anyway. Because of that, they questioned whether a 2nd attempt would be unconstitutional following a 1st attempt they characterized as cruel.
“It is uncontroverted that ADOC inflicted actual physical and psychological pain on Mr. Smith by repeatedly trying (and failing) to establish IV access through his arms, hands, and by a central line as he was strapped to a gurney for hours,” Smith’s lawyers said in their request to the Supreme Court. “Mr. Smith’s was the third consecutive execution that ADOC botched or aborted for that same reason. ADOC’s failed attempt to execute Mr. Smith caused him severe physical pain and psychological torment, including posttraumatic stress disorder.”
Smith’s lawyers asked the Supreme Court to address this 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?”
According to Smith’s request to the Supreme Court, the court has only once previously considered whether it violated the Constitution for a state to try to execute a person for a second time after a failed first attempt. That case involved a Louisiana inmate who had survived an electric chair execution because of an apparent mechanical failure. In a 5-4 decision, the court ruled that the second attempt would not violate the 8th Amendment prohibition on cruel and unusual punishments.
Smith’s lawyers cited in their brief to the court a statement by one of the justices in his opinion siding with the majority in that 1947 decision. Justice Felix Frankfurter wrote that the decision not to block the second execution attempt in that case “does not mean that a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cruelly willful attempt, would not raise different questions.”
Separately from his request for a stay to the Supreme Court, Smith has asked the 11th U.S. Circuit Court of Appeals to block the execution because state’s never- used nitrogen hypoxia protocol carries risks of a prolonged death and suffering. That’s an appeal of the decision by U.S. District Judge Austin Huffaker Jr., who declined Smith’s request to block the execution.
A 3-judge panel of the appeals court heard arguments on Friday but has not issued a decision.
Smith’s appeal to the U.S. Supreme Court questioning the constitutionality of a 2nd execution attempt comes after Alabama courts, including the Alabama Supreme Court, rejected that argument.
Smith was twice convicted by juries for the murder-for-hire of Elizabeth Dorlene Sennett in her home in Colbert County in north Alabama in 1988. Sennett, a pastor’s wife, was beaten and stabbed repeatedly. Smith, who was hired by the victim’s husband to commit the slaying, confessed to his role in the crime and has been on death row since 1996.
The Alabama Legislature authorized the nitrogen hypoxia method as an alternative to lethal injection in 2018. The method has never been used by any state.
The state released a redacted protocol for how nitrogen hypoxia will work in August 2023, when it asked the Alabama Supreme Court for an order authorizing Smith’s execution by that method. The inmate is to breathe only nitrogen through a mask, resulting in death from a lack of oxygen. The protocol says nitrogen will be administered for 15 minutes, or 5 minutes following a flatline indication on the EKG, whichever is longer.
Alabama Solicitor General Edmund LaCour told a 3-judge panel of the 11th Circuit on Friday that the method would be “painless and humane.” Smith’s lawyers said there is too much uncertainty about the protocol.
