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The Exit Internationalist

January 24, 2024

Protesters call for stop to Alabama’s ‘experimental’ execution of Kenneth Eugene Smith

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Protesters call for stop to Alabama’s ‘experimental’ execution of Kenneth Eugene Smith reports Mike Cason of

Representatives of churches, civil rights organizations, and anti-death penalty groups rallied at the Alabama State Capitol on Tuesday to protest the execution of Kenneth Eugene Smith, scheduled for Thursday.

They prayed, sang, carried signs, and delivered petitions to the office of Gov. Kay Ivey urging her to stop the execution. In particular, they protested the plan to use a new method that would make Smith the first person any state has ever killed by nitrogen hypoxia.

With a banner bearing the message “Stop Experimental Executions” as a backdrop, Rev. Jeff Hood of Little Rock, Ark., Smith’s spiritual advisor, said there is ample reason for concern that the execution could go wrong.

Alabama tried to execute Smith by lethal injection in November 2022 but called it off because the execution team could not establish the intravenous connections before the death warrant expired at midnight. Smith said he was strapped to a gurney for hours and painfully poked with needles during the unsuccessful attempts to tap his veins.

The same thing happened with the attempted execution of Alan Eugene Miller, which was called off in September 2022. The execution of Joe Nathan James Jr., in July 2022 was delayed several hours and witnesses said James was already unresponsive when the curtain opened for execution to begin.

“We’ve got a state that has botched three executions, horribly botched three executions in recent years,” Hood said. “And this is supposed to be the same people who are going to be successful at the first experimental, novel, nitrogen hypoxia execution? So anybody who would say I’m being alarmist, they need to look at this state’s history. Their track record.”

Hood plans to be with Smith in the execution chamber Thursday night and has expressed alarm about the risk to him and others in attendance at the execution.

Attorney General Steve Marshall’s office and Gov. Kay Ivey have expressed confidence in the new method. State Solicitor General Edmund LaCour Jr., described the method as safe and humane during a court hearing last week.

Ivey noted that Smith requested nitrogen hypoxia in a lawsuit before the method was ready.

“This method has been thoroughly vetted, and both the Alabama Department of Corrections and the Attorney General’s Office have indicated it is ready to go,” Ivey said. “The Legislature passed this law in 2018, and it is our job to implement it. I am confident we are ready to move forward.”

Esther Brown, executive director of Project Hope to Abolish the Death Penalty, noted that the law that put Smith on death row has changed. Smith’s jury recommended a sentence of life without parole, but the judge overrode that recommendation and sentenced Smith to death in 1996.

Alabama has since changed the law and juries now have the final word on whether someone convicted of a capital crime receives the death penalty or life in prison.

“Kenny should not be on death row.,” Brown said. “We changed the law. But unfortunately, Alabama has a way of sticking to very ugly laws.”

Smith was convicted for his role the murder-for-hire of Elizabeth Dorlene Sennett in her home in Colbert County in 1988. Sennett was a pastor’s wife who was beaten and stabbed. Smith confessed to his role in the crime after the slaying.

Gary Drinkard, who spent five years on Alabama’s death row and was released from prison in 2001 after being acquitted during a retrial, spoke at Tuesday’s protest.

“We’re not saying Kenny is innocent,” Drinkard said. “But he was a changed man. He was a born-again Christian when I got there. He always had a smile on his face.”

“He’s sorry for what happened,” Drinkard said. “Would never do it again, always trying to help somebody if he could. That was Kenny.”

The Alabama Legislature authorized nitrogen hypoxia executions in 2018, but no state had ever done one. In Smith’s lawsuit seeking to block a second attempt to execute him by lethal injection he proposed nitrogen hypoxia as an alternative. At that time, the state had not announced it was ready to use the method.

Then in August 2023, the attorney general’s office asked the Alabama Supreme Court to authorize Smith’s execution by nitrogen hypoxia and released a redacted protocol on how it would work, the first information the state had released about the 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 five minutes following a flatline indication on the EKG, whichever is longer.

In a statement on Tuesday, Attorney General Marshall’s office noted the ruling of U.S. District Judge Austin Huffaker Jr., who denied Smith’s request to block the execution after a hearing and reviewing experts’ opinions.

“The trial court examined Smith’s objections to nitrogen hypoxia and found that the only risks Smith identified depended on ‘a cascade of unlikely events’ occurring,” Marshall’s office said in the statement.

“Smith’s own expert witness, Dr. Philip Nitschke, described Alabama’s method as ‘fast, effective and with no risk to others.’ He said that ‘nitrogen hypoxia is not cruel & unusual.’ Anti-death-penalty advocates simply ignore these facts.”

But Nitschke, a medical doctor with experience in assisted suicides, did identify problems and risks in Alabama’s protocol, according to court documents. Part of that was concerns that air would leak around the mask and prolong death or leave Smith with injuries short of death. Another risk is that Smith could vomit into the mask and choke.

Huffaker, in his order denying Smith’s request to block the execution, wrote that Nitschke believed that Alabama’s protocol could lead to “incomplete cerebral hypoxia” and leave Smith in a “vegetative state with permanent brain damage.”

In a brief supporting Smith’s request for a preliminary injunction to block the execution, Nitchske said the use of a mask like Alabama will use to deliver the gas will be unreliable because of the risk of losing the air-tight seal.

“As Dr. Nitschke explained: ‘If an execution subject is uncooperative, any procedure that relies on a facemask will be at risk of significant failure,” the brief said. “One way to bypass the inherent problems of a facemask is to use a capsule, hood or container.’”

Smith has appealed Huffaker’s ruling to the U.S. 11th Circuit Court of Appeals. Smith also filed a request for a stay of the execution with the U.S. Supreme Court and a request for the justices to review whether the second execution attempt would violate the constitution.

This story was updated at 9:37 p.m. to say that defense expert Dr. Nitschke believes the Alabama protocol carries risks.

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