The state of Alabama is seeking to use an untested method to execute a man on death row whose execution was already botched once before.
Prosecutors want to push forward with executing 58-year-old Kenneth Eugene Smith using nitrogen hypoxia, which would involve him inhaling nitrogen without the presence of oxygen, effectively causing suffocation.
During a scheduled execution last November, Smith survived four hours tightly strapped to the execution gurney. Executioners prodded him repeatedly near his collarbone and arms, failing to find a vein to inject him with a combination of chemicals that was supposed to kill him.
Alabama Attorney General Steve Marshall is looking to set a new date for Smith’s execution.
“It is a travesty that Kenneth Smith has been able to avoid his death sentence for nearly 35 years after being convicted of the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” Marshall said in a statement on Friday.
Smith was convicted in the 1980s for killing Sennett, whose pastor husband, Charles Sennett, had hired Smith and another person, John Forrest Parker, to kill her so he could cash out on the insurance policy, according to the Montgomery Advertiser.
In 2022, Smith’s attorneys sought to stay his execution, while the state kept moving to push it forward.
The day Smith was scheduled to be executed in November 2022, executioners struggled to access a vein for the lethal injection. The execution team was able to establish one of two necessary intravenous lines into one of Smith’s veins, but couldn’t successfully establish a second one before his death warrant expired at midnight, The Associated Press reported. Alabama Department of Corrections Commissioner John Q. Hamm said executioners tried “several locations” on Smith, AL.com reported at the time.
“At some point before midnight, Defendants [ADOC] stopped their attempted execution of Mr. Smith, but not before inflicting grave physical pain and emotional trauma, the likes of which the human brain is not able to process,” Smith’s attorneys alleged in a motion against ADOC.
Smith was left on the gurney for hours, unaware that his execution had been stayed.
Alabama has botched multiple executions involving the highly controversial lethal injection process in recent years, failing to access veins — including that of Alan Eugene Miller, once known to be the “only living execution survivor.” (Smith’s attorneys said that Smith has now joined Miller as one of the only two execution survivors in the U.S.)
“Alabama has a dismal record of ‘getting it right’ when it comes to executions – the state botched three lethal injection executions in 2022. It is the very last state that should now experiment using an unprecedented, untested procedure with unknown consequences,” Robin Maher, the executive director of the Death Penalty Information Center, told HuffPost.
Smith had originally requested death by nitrogen hypoxia. He is not the first inmate to request an alternate execution method. Two inmates in Oklahoma last year requested death by firing squad in an attempt to avoid the possibility of prolonged pain during the lethal injection process. (While the lethal injection process has been marketed as a “humane” way to kill, the experience has been compared to the sensation of being exposed to a chemical fire.)
A heavily redacted 41-page document detailing the protocol for nitrogen hypoxia, a never-before-used procedure, says that a mask will be placed on the individual’s face. “After the nitrogen gas is introduced, it will be administered for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer,” the document reads. The procedure causes people to suffocate to death due to a lack of oxygen, and it’s permitted in Alabama, Oklahoma and Mississippi.
“No state has ever attempted to execute a prisoner by nitrogen suffocation before, so in a very real sense the procedure is experimental,” Robert Dunham, director of the Death Penalty Policy Project and an adjunct professor at the Temple University Beasley School of Law, told HuffPost.
“No one knows for certain whether it is going to work the way its proponents say it will, and the execution protocol is so full of redactions that no one can tell you exactly what Alabama plans to do. And there is no ethical way to test it because you can’t test-kill prison employees to see if there are problems in the process,” he continued.
The Alabama Department of Corrections did not immediately respond to HuffPost’s request for comment. Smith’s attorneys declined to comment.