U.S. Supreme Court upholds Alabama inmate’s request to die by nitrogen hypoxia

Attorneys for state argued the move was a delaying tactic

By: - May 15, 2023 1:23 pm
A headshot of an inmate.

A profile photo of Kenneth Eugene Smith. (Alabama Department of Corrections)

The U.S. Supreme Court Monday upheld a lower court’s decision that allowed a death row inmate subjected to a botched execution last year to choose death by nitrogen hypoxia.

The high court turned down an appeal from the Alabama Department of Corrections, which argued that move by Kenneth Eugene Smith was a delaying tactic.

In 1996, a jury convicted Smith of the murder of Elizabeth Sennett in a murder-for-hire plot.  The jury voted to sentence Smith to life in prison without the possibility of parole, but the trial judge overruled the jury’s verdict and sentenced him to death.

Smith was scheduled to be executed in November, following the botched executions of Joe Nathan James Jr. and Alan Miller. James was executed after a process that took over three-and-a-half hours. Miller’s execution was called off after DOC staff failed to find a vein.

Smith challenged the execution as a violation of his Eighth Amendment rights against cruel and unusual punishment, citing the botched attempts on James and Miller, and argued that he should be able to choose death by nitrogen hypoxia. The Montgomery Advertiser reported in 2019 that the previous year, death row inmates were only given days to choose their preferred method of execution.

The 11th Circuit Court of Appeals ruled in Smith’s favor and stayed the execution on Nov. 17. But the U.S. Supreme Court overturned the stay a few hours later. Smith’s execution was called off after DOC said it lacked to time to properly carry out the execution.

The inmate’s attorneys wrote in a brief last January that Smith “continues to experience physical and emotional pain, including lingering pain in his arm, near his collarbone, back spasms, difficulty sleeping, and likely post-traumatic stress disorder” from the failed execution.

Gov. Kay Ivey issued a brief moratorium on executions after Smith’s was called off. The moratorium was lifted in February after an internal review by DOC. Clergy and attorneys had called for an independent review of the state’s execution methods.

The DOC asked the court to overturn the 11th Circuit’s ruling last December, saying it violated precedent and that Alabama was not equipped to carry out executions by nitrogen hypoxia.

“For as long as inmates have argued nitrogen hypoxia is available ‘as a matter of law,’ the State has responded that the method remains unavailable as a matter of fact,” the brief said.

Smith’s attorneys wrote in response that the 11th Circuit had followed precedent, and that the state should not have authorized the execution method if it was not prepared to carry out executions with it.

“That the process of developing that protocol may be taking longer than the State had hoped is beside the point,” the brief said. “Alabama still makes execution by nitrogen hypoxia available to all condemned people when their convictions and sentences become final.”

Justice Clarence Thomas wrote a dissenting opinion arguing that Smith failed to state a claim.

“When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future,” Thomas wrote.

The state has not carried out any executions by nitrogen hypoxia. It is not clear when the method may be ready.


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Ralph Chapoco
Ralph Chapoco

Ralph Chapoco covers state politics as a senior reporter for States Newsroom. His main responsibility is the criminal justice system in Alabama.