Alabama will be allowed to put killer Kenneth Eugene Smith to death with nitrogen gas, a federal appeals court ruled Wednesday.
The ruling refuses to block what would be the nation´s first execution by a new method since 1982.
Smith will be gassed to death with nitrogen hypoxia tomorrow at 6pm in Atmore, Alabama. It will be the first execution of its kind in the US and first known nitrogen execution in the world.
Earlier Wednesday, Smith had begged the Supreme court for mercy, citing experts concerns over the method despite previously requesting it and that it would violate the Eighth Amendment’s ban on cruel and unusual punishments. They denied that appeal.
Now, it appears they will likely hear and rule on whether Alabama can use the new method of execution before Smith is set to be put to death.
Alabama will be allowed to put killer Kenneth Eugene Smith to death with nitrogen gas, a federal appeals court ruled Wednesday
Kenneth Smith is set to be executed with nitrogen gas on Thursday, which the UN has branded ‘torture’ and scientists have largely banned from animal experiments
Prosecutors said Smith and John Forrest Parker were each paid $1,000 to kill Elizabeth Sennett for husband Charles Sennett Sr., who was deeply in debt and wanted to collect on insurance
Smith, 58, is one of two men convicted in the murder-for-hire slaying of a preacher´s wife in 1988 that rocked a small north Alabama community.
Prosecutors said he and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.
Sennett, 45, was found dead March 18, 1988, in her home in Colbert County with eight stab wounds in the chest and one on each side of her neck, according to the coroner.
Her husband, Charles Sennett Sr., killed himself when the investigation focused on him as a suspect, according to court documents.
Smith´s initial 1989 conviction was overturned on appeal, but he was retried and convicted again in 1996.
The jury recommended a life sentence by a vote of 11-1, but a judge overrode that and sentenced him to death. Alabama no longer lets judges override jury decisions in death penalty cases.
John Forrest Parker, the other man convicted in the slaying, was executed in 2010.
Smith was due to be executed last year by lethal injection but nurses struggled to find a clear vein in time before the execution warrant expired.
Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore is pictured in this file photo
Former death row inmates who were exonerated, from left, Randall Padgent, Gary Drinkard and Ron Wright, were among the nearly one hundred protestors gathered at the state capitol building in Montgomery on Tuesday to ask Governor Kay Ivey to stop the planned execution of Kenneth Eugene Smith
Nearly one hundred protestors gather at the state capitol building
A panel of the 11th U.S. Circuit Court of Appeals rejected Smith´s request for an injunction to stop his scheduled execution by nitrogen hypoxia Thursday.
Smith´s lawyers have argued that the state is trying to make him the test subject for an untried execution method and are expected to appeal to the U.S. Supreme Court.
The method involves putting a respirator-type face mask over the nose and mouth to replace breathable air with nitrogen, causing death from lack of oxygen.
The state predicted in court filings that the gas will cause an inmate to lose consciousness within seconds and cause death within minutes.
Critics of the untested method say the state can´t predict what will happen and what Smith will feel after the warden switches on the gas.
Some states are looking for new ways to execute death row inmates because the drugs used in lethal injections, the most common execution method in the United States, have become difficult to find.
Three states – Alabama, Mississippi and Oklahoma – have authorized nitrogen hypoxia as an execution method, but no state has attempted to use it so far.
The experimental method is so grim that the American Veterinary Medical Association ruled it was too ‘distressing’ to be used when euthanizing animals in 2000.
Dr. Philip Nitschke, an assisted suicide expert who uses the gas in his ‘euthanasia pods’, has also warned of how unpleasant it will be for Smith.
‘I feel anxious about Kenny, and I just don’t know which way things are going to go,’ Nitschke told The New York Times.
He says that while nitrogen hypoxia is suitable in chambers, the fact Smith will be wearing a mask poses the possibility of oxygen leaking in and prolonging the procedure.
Rev. Jeff Hood, Smith’s spiritual confidante, told the Times he expects he will thrash against the gurney.
‘This is not going to be a peaceful experiment. I think it’s important for people to realize, when you strap someone down like that, you can’t expect someone who’s choking to death — suffocating to death — to not resist,’ he said.
Alabama’s lethal injection chamber at Holman Correctional Facility in Atmore, Ala., is pictured in this Oct. 7, 2002 file photo. Kenneth Smith, 58, is scheduled to be executed Jan. 25, 2024
Elizabeth’s preacher husband Charles Sennett Sr., who was in debt and terrified that she’d discover it
Meanwhile, a Catholic priest set to enter the execution chamber to accompany Smith during his final moments fears he could be put at risk by the new technique.
The Reverend Jeff Hood told the WFSA: ”We are being exposed to nitrogen gas in a way that nobody in human history has ever been exposed to nitrogen gas.
‘It’s a scary thing, there is no doubt about that. But it’s not scary enough to make me turn away from what god has called me to do.’
Hood had to also sign a waiver from the state just to be in the room during the execution.
He also told WVTM: ‘I would rather risk my life than forsake my calling. Let there be no doubt, we will resist such tyranny until we can resist no more.
‘Kenny Smith is a child of God. The state of Alabama will never be able to suffocate that truth.’
Hood also added that Smith is afraid of what is about to happen to him, saying: ‘Presently, Kenny is sickened, deeply pained and horrified at the nitrogen hypoxia experiment that is to come.
Inside the chamber will be an unnamed correctional officer and Reverend Dr. Jeff Hood, a Catholic priest and long-time death row minister. Hood, pictured, fears his own health could be put at risk by the novel technique
‘Despite the darkness that has descended, he tries very hard to fill every second he might have left with as much love as he can muster.’
Smith and another man stabbed Sennett to death in a murder-for-hire plot that was orchestrated by her preacher husband, who paid Smith $1,000 for the murder.
According to the state protocol, a ‘full facepiece supplied air respirator’ will be placed over Smith’s face with the gas being administered for at least 15 minutes.
Alabama’s Attorney General Steve Marshall says it’s the treatment Smith deserves for the heinous murder he committed 36 years ago.
In a response to Smith’s Supreme Court application for a stay in execution, Marshall said: ‘Kenneth Smith is scheduled to be executed by nitrogen hypoxia, perhaps the most humane method of execution ever devised.
‘Such treatment is much better than Smith gave Elizabeth Sennett nearly thirty-six years ago. Smith and an accomplice tricked Elizabeth into letting them into her home, only to stab her eight times in the chest and twice in the neck—all to make a quick buck.
‘Now Smith says his execution will be cruel and unusual because fourteen months ago, he was “stabbed” with a needle to obtain IV access during a prior execution attempt.
‘Smith’s application for a stay should be denied,’ he wrote.