The U.S. Supreme Court on Wednesday declined to stop the very first nitrogen gas execution in the United States after an Alabama death row inmate appealed to the high court.
Inmate Kenneth Smith received the death penalty for his role in a murder-for-hire scheme in 1988. More than a year ago, officials in Alabama stopped an effort to execute him via lethal injection but failed before the deadline.
The justices denied Mr. Smith’s request to stay his execution, which is slated for Thursday, and declined to hear his legal challenge contending.
None of the nine justices publicly dissented in the case. The Supreme Court also provided no explanation of their brief order.
His attorneys argued last week, in part, that a second execution may violate the Constitution’s 8th Amendment that bars cruel and unusual punishment.
Mr. Smith, 58, is separately contesting the legality of Alabama’s nitrogen gas protocol on the Eighth Amendment and other grounds. That litigation still could come to the Supreme Court, potentially giving the justices another opportunity to decide whether to halt the execution.
A judge ruled against Smith concerning the protocol on Jan. 10. The Atlanta-based 11th U.S. Circuit Court of Appeals upheld that decision on Wednesday.
The inmate’s botched execution was the third consecutive instance in which Alabama officials encountered problems or delays inserting intravenous lines for a scheduled lethal injection, with two of the executions, including Mr. Smith’s, eventually called off, according to court filings.
The issues with lethal injection then prompted Alabama Gov. Kay Ivey, a Republican, to announce a review of the state’s execution procedures. Officials completed the review a few months later, saying they obtained new equipment and would add to the pool of available medical personnel for executions.
So far, only three states—Alabama, Mississippi, and Oklahoma—have approved the method of execution known as nitrogen hypoxia. It’s never been used before.
Officials plan to deliver the nitrogen to Mr. Smith via a mask. The theory behind the method suggests that the inmate will lose consciousness due to a lack of oxygen before dying.
His lawyers, meanwhile, filed another appeal to the U.S. Court of Appeals for the 11th Circuit on Wednesday to halt the execution. But that court similarly declined to hear his case on Wednesday evening and wrote that he has not shown “a substantial likelihood of success on the merits of his claims.”
“Accordingly, his motion for a stay of execution is due to be denied without regard to the other prerequisites for the issuance of the same,” said the court in its order.
In their request to that court, his attorneys wrote that Alabama changed its plans by creating a new schedule for him to have his last meal before death. They said that because he was “vomiting repeatedly,” it could mean that he might vomit into the mask, which would raise the risk of another botched execution.
“While there is no doubt that a stay of execution is the exception and not the rule, it is difficult to imagine a more exceptional case than one in which a State intends to employ a novel protocol for a never-before-used method of execution, using a plan that continues to shift less than 48 hours before the execution is scheduled to begin,” his attorneys wrote.
Alabama officials responded in court by saying that the evidence that Mr. Smith had been vomiting was due to his own reporting, suggesting that they may be inaccurate. They argued that the court should deny his request.
Reports and court papers say that Mr. Smith and John Forrest Parker were hired by Billy Gray Williams, who had been hired by Charles Sennett Sr. to murder his wife in 1988 in Colbert County, Alabama. Mr. Smith and Mr. Parker were found guilty of murdering Ms. Sennett by stabbing her to death in her home. After her death, Mr. Sennett killed himself when he learned that he was named as a suspect in the case.
Mr. Williams received life without parole for his involvement and died in prison in November 2020. Mr. Parker was executed via lethal injection in 2010.
In response to the recent court activity, Republican Alabama Attorney General Steve Marshall said that his office is ready “to carry on the fight for Liz Sennett. Two courts have now rejected Smith’s claims. I remain confident that the Supreme Court will come down on the side of justice, and that Smith’s execution will be carried out tomorrow.” Ms. Sennett was killed by Mr. Smith in what officials said was a horrific manner.
He added: “He’s [Smith] actually probably laughing, or has been because he said he would get out of that first one, and he did. So, this one better go through, or we are going to have some serious problems.”
