ATMORE, Ala. — Preparations were underway Thursday to put an Alabama man to death using nitrogen gas — the first execution of its kind in the nation — as legal challenges were waged in the final hours attempting to halt the untested method.
Kenneth Eugene Smith, 58, is set to die by nitrogen hypoxia, in which he will be strapped to a gurney and made to breathe nitrogen gas through a mask apparatus, depriving him of oxygen. The execution is set for 6 p.m. local time at the William C. Holman Correctional Facility in Atmore.
But such timing can be uncertain, as the U.S. Supreme Court could intervene, and this is particularly the case in Alabama, where a series of problematic executions using lethal injection prompted officials to pause the practice in 2022 and reevaluate.
“I’m leaving with love, peace and light,” he added. “Thank you for supporting me, love all of you.”
Media witnesses said he appeared conscious for several minutes into the execution, and then he appeared to shake and writhe on the gurney for two minutes. That was followed by several minutes of deep breaths until his breathing slowed and it was no longer perceptible to media witnesses.
Corrections Commissioner John Hamm said at a news conference that Smith appeared to be holding his breath as long as he could. He said there was some “involuntary movement” that was expected and that “nothing was out of the ordinary.”
Nitrogen hypoxia is an untested method in the U.S. About 50 minutes after the execution was originally scheduled to happen Thursday, the U.S. Supreme Court again rejected a request by Smith’s lawyers to block the execution.
Smith, who was convicted for his role in a 1988 murder-for-hire slaying of a preacher’s wife, Elizabeth Sennett, was already a rare example of a person who survived an execution. An attempt to put him to death by lethal injection in 2022 failed when prison staff members at Atmore tried unsuccessfully to insert needles into a suitable vein.
That failure, among a series of problematic executions using lethal injection in the state, prompted Alabama officials to pause the practice in 2022 and re-evaluate.
“After more than 30 years and attempt after attempt to game the system, Mr. Smith has answered for his horrendous crimes,” Gov. Kay Ivey said in a statement after his execution. “I pray that Elizabeth Sennett’s family can receive closure after all these years dealing with that great loss.”
Michael Sennett, one of Elizabeth Sennett’s adult sons, witnessed the execution.
Smith looked like “a fish out of water for some time, but not too bad,” Sennett said, adding, “His debt was paid tonight.”
Smith’s wife, Deanna Smith, was also present.
“He was a good man, and he didn’t deserve this,” she said.
In the lead-up to his execution, Smith had said that surviving a previous execution attempt left him with post-traumatic stress disorder and bouts of vomiting, and his lawyers had said in court filings they worried he might vomit and choke while he was in the death chamber with the mask on.
Prison officials said earlier that as a precaution to Smith’s vomiting, they gave him his final meal of solid food by 10 a.m. and only clear liquids throughout the day.
Smith’s spiritual adviser, the Rev. Jeff Hood, said his last meal consisted of a Waffle House order: a T-bone steak, hash browns and scrambled eggs in A.1. sauce and toast.
The concern that Smith was potentially being subjected to cruel and unusual punishment in violation of the Constitution had been the basis for filings by his legal team, and it led opponents of capital punishment and United Nations human rights experts to voice their concerns. But a federal appeals court dealt another blow Wednesday, writing in a majority opinion that the fact that nitrogen hypoxia is “new and novel” does not mean it is inherently cruel and unusual.
Alabama approved the use of nitrogen hypoxia for executions in 2018, given that the primary method, lethal injection, has become increasingly difficult because of a shortage of the necessary drugs.
Oklahoma and Mississippi have also approved the use of nitrogen hypoxia, but neither has tried it.
The appeals court noted it was Smith who initially agreed to accept nitrogen hypoxia over using lethal injection again, although it was at a time when the state’s protocol had not been developed.
Smith’s lawyers have argued that it is not the method itself that is troubling but the unknowns surrounding Alabama’s protocol, which has been heavily redacted in public filings.
His lawyers lodged another petition to the U.S. Supreme Court on Thursday to block the execution, after the high court denied his application Wednesday without comment.
If nitrogen, a naturally occurring, colorless and odorless gas, is not mixed with enough oxygen, it can cause physical side effects, such as impaired respiration, vomiting and even death.
Medical experts had said even a small amount of oxygen’s getting into the mask when Smith was breathing nitrogen could lead to slow asphyxiation and prolong the time it would take for him to die.
Hood was allowed to remain in the execution room, where, officials said, he could give Smith his last rites before the mask was affixed to his face. Hood said that prison officials gave him an “orientation” Wednesday but that he still had his doubts about safety, including his own if something went awry.
“That experience made me feel worse about today, certainly not better,” Hood said before the execution. “I expected there to be some sort of, more of a plan, more of a safety plan, more precautions, and none of that was in place. None of that was reality. I’ve kept asking questions. And they kept saying, ‘Trust us, trust us.’”
Hood said he was initially required to sign a waiver agreeing to be a certain distance from Smith in the chamber for his own protection.
“I think I’m prepared to witness a horror show,” he said earlier, adding that Smith had been growing nauseated in recent days. “I can’t imagine seeing him choked to death, suffocate to death, have seizures.”
State officials have downplayed such concerns as speculative. In asking the Supreme Court on Thursday to deny Smith’s request to stay the execution, the state attorney general’s office said it believes “the new method will be swift, painless, and humane” and that “Smith will not have stomach contents of sufficient volume at the time of execution to vomit enough to choke to death.”
The high court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — dissented to the decision to deny blocking Smith’s execution.
Sotomayor wrote in her dissent that Smith was previously correct that he faced an unconstitutional risk of pain during his first execution attempt and that “I sincerely hope that he is not proven correct a second time.”
With his execution looming closer, Smith said last month that he had regrets, but he was adamant that the use of nitrogen gas as a new execution method would only “make more victims.”
Smith was 22 when a pastor named Charles Sennett hired him and two other people for $1,000 each to kill his wife so he could collect on her life insurance, prosecutors said. Elizabeth Sennett, 45, was stabbed and beaten to death in her home. Her husband died by suicide, and one of the other men convicted in the slaying was executed in 2010.
A judge sentenced Smith to death in 1996, even though a jury voted 11-1 that he receive life in prison.
After his execution, members of Smith’s legal team said they are hopeful new legislation being planned in Alabama can “ensure that inmates like Kenny, who are on death row only because a judge overrode a jury’s measured determination to spare their lives, won’t suffer the same fate that he did today. Unfortunately, those efforts, if successful, will be too late for Kenny.”
Elizabeth Sennett’s adult sons said earlier Thursday that after more than three decades of not having their mother, “we want closure” — no matter the method.
“He’s never apologized to us for this,” Charles Sennett Jr. said. “Not a letter, not a word through his spiritual adviser or whoever. If he had done something like that years ago, we might have a little bit more compassion for the man.”
“As Christians,” Sennett said, “we’ve forgiven him.” (NBC)