Ala. death row inmate Kenneth Eugene Smith can die by nitrogen hypoxia, Supreme Court rules

Smith was set to die in 2022, but survived after workers couldn’t start an intravenous line for the lethal injection drugs before the state’s execution warrant expired

May 15, 2023 12:37 PM

His legal team had argued in federal court that he should be allowed to die by nitrogen hypoxia, a method the state approved in 2018 but hasn’t yet been attempted anywhere in the United States.

By Ivana Hrynkiw
al.com

MONTGOMERY, Ala. — The U.S Supreme Court on Monday ruled in favor of Alabama Death Row inmate Kenneth Eugene Smith, siding with his lawyers who argued he should be allowed to die by nitrogen hypoxia, the state’s new but untested method of execution.

Smith was set to die in November 2022, but survived after workers at the Alabama Department of Corrections couldn’t start an intravenous line for the lethal injection drugs before the state’s execution warrant expired at midnight.

His legal team had argued in federal court that he should instead be allowed to die by nitrogen hypoxia, a method the state approved in 2018 but hasn’t yet been attempted anywhere in the United States.

The U.S. Eleventh Circuit Court of Appeals sided with Smith on the day of his scheduled execution, granting him a stay. But the nation’s high court lifted that stay, allowing the execution to go forward— it was only called off due to issues placing the IV in time. The 57-year-old later claimed in court filings he laid on a gurney and was poked with needles for four hours before the state called off the execution.

But the Supreme Court’s lift of the stay at that time did not address Smith’s choosing nitrogen hypoxia instead of lethal injection. Monday’s decision not to grant certiorari, or review the case, leaves in place the appeals court’s decision, which sided with Smith.

Justices Samuel Alito and Clarence Thomas dissented, saying they would review the case. Thomas in his dissent called the case “last-minute litigation” and questioned whether a new and untested method was a readily available option.

Thomas said Smith “did not even attempt to plead facts indicating that Alabama ‘could readily use [nitrogen hypoxia] to execute him.’”

“The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction,” wrote Thomas. “This petition offered an opportunity, which may well prove unique, to consider and correct (former cases’) faulty reasoning outside of that posture. Because the Court declines that opportunity, I respectfully dissent.”

Smith was convicted and sentenced to death for the 1988 murder-for-hire of Elizabeth Dorlene Sennett, a pastor’s wife from Colbert County who was fatally stabbed and beaten.

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