A Divided Alabama Supreme Court Allows Execution by Nitrogen Gas
By KIM CHANDLER Associated Press
MONTGOMERY, Ala. — The Alabama Supreme Court, divided on partisan lines, has ruled in favor of allowing the state to execute an inmate using nitrogen gas, a method never before utilized for a death sentence. The court made its decision in a 6-2 vote on Wednesday, granting the state attorney general’s request for an execution warrant for Kenneth Eugene Smith. Smith was convicted in the 1988 murder-for-hire killing of Elizabeth Sennett in northwestern Alabama.
Although the order did not specify the execution method, the attorney general’s court filings indicated the intention to carry out Smith’s execution using nitrogen gas. The exact date of the execution will be determined later by Governor Kay Ivey.
This decision propels Alabama closer to becoming the first state to attempt an execution using nitrogen gas. However, there is expected to be further legal challenges regarding the proposed new method. While Alabama, Oklahoma, and Mississippi have authorized nitrogen hypoxia for executions, none of the states have implemented it.
Under the proposed method, the inmate would be made to breathe only nitrogen, depriving them of the oxygen necessary to sustain bodily functions, leading to death. Nitrogen constitutes 78% of the air humans inhale and is harmless when mixed with oxygen. Advocates argue it would be a painless method, but opponents equate it to human experimentation.
“There are still too many unanswered questions for Alabama officials to responsibly move forward with this protocol,” stated Robin Maher, the executive director of the Death Penalty Information Center.
Alabama Attorney General Steve Marshall hailed Wednesday’s ruling as it “cleared the way for Kenneth Eugene Smith to be executed by nitrogen hypoxia.” However, he criticized the decades-long wait for justice endured by the victim’s family as “unconscionable.”
Lawyers representing Smith urged the court to reject the execution request, asserting that he should not be used as a “test subject” for the untested execution method. Following the court’s decision, attorney Robert Grass vowed to continue the legal battle, highlighting the dissenting opinions of Chief Justice Tom Parker and Justice Greg Cook.
Last year, the state’s attempt to execute Smith by lethal injection was unsuccessful. The execution was called off by the Alabama Department of Corrections when the execution team failed to establish the required two intravenous lines connected to Smith.
Smith’s attorneys have previously accused the state of expediting his execution by nitrogen in order to render his lawsuit challenging lethal injection procedures moot.
In Smith’s case, the jury recommended a life sentence with an 11-1 vote, but a judge overrode the recommendation and sentenced him to death. Alabama no longer permits judges to override a jury’s sentencing recommendation in death penalty cases.
Prosecutors argued that Smith and another man were paid $1,000 each to kill Sennett on behalf of her debt-ridden pastor husband, who sought to collect insurance money. The murder and the revelations regarding its orchestrators shook the small community. Sennett’s husband took his own life a week later. The other man convicted in the crime was executed in 2010.