A federal judge on Wednesday paved the way for convicted murderer Kenneth Eugene Smith to become the first person to be execution by nitrogen hypoxia. Photo courtesy of Alabama Department of Corrections.
Jan. 10 (UPI) -- A federal judge on Wednesday rejected an Alabama death row inmate's request to prevent the state from executing him later this month, paving the way for him to become the first person to be put to death by the untested and controversial method of nitrogen hypoxia.
Kenneth Eugene Smith was convicted of capital murder for killing 45-year-old Elizabeth Dorlene Sennett in March of 1988 in a murder-for-hire plot that netted him $1,000. Though the trial jury in 1996 recommended 11-to-1 that he been sentenced to life in prison, the judge handed down a sentence of execution -- a judicial move that has been outlawed in Alabama since 2017.
In November of 2022, the state attempted to execute Smith, 58, by lethal injection, but the execution was called off following 90 minutes of trying to gain access to his veins while he was shackled to the gurney.
Prior to and after the failed execution, Smith argued for his sentenced to be carried out by nitrogen hypoxia that would see a mask placed over his mouth and nose in order for him to breath only nitrogen, causing him to die by strangulation.
Alabama has since agreed for him to die by nitrogen hypoxia, but, after his execution was scheduled to carried out within a 30-hour time frame between Jan. 25 and Jan. 26, he asked the court to enjoin the state from following through on his sentence under Alabama's current protocol, arguing it violates his constitutional rights.
Smith argued that the state's intention to execute him by nitrogen hypoxia under its current protocol would expose him to a "severe risk of a persistent vegetative state, a stroke or the painful sensation of suffocation." Another failed attempt, he said, could leave him with permanent injuries.
He also said the mask used to administer the nitrogen hypoxia will interfere with his right to make a final statement and pray.
Judge R. Austin Huffaker Jr. ruled Wednesday that while some of his constitutional arguments may move forward, he will not grant Smith's request to enjoin the state from executing him.
"Smith is not guaranteed a painless death," Huffaker wrote in the 48-page ruling. "On this record, Smith has not shown and the court cannot conclude, the protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework."
Huffaker also added that there is not enough evidence to show with any degree of certainty that execution by nitrogen hypoxia under Alabama's protocol would "substantially likely" cause him pain short of death or a prolonged death.
"It could, in a highly theoretical sense, but only if a cascade of unlikely events occurs," he wrote. "Or it may well be painless and quick. Execution by nitrogen hypoxia is novel. And it will remain novel even if the defendants employ Smith's proposed amendments to the protocol."
Alabama Attorney General Steve Marshall issued a statement in response to the ruling, stating they are now a step closer to holding Smith accountable for killing Sennett.
"Smith has avoided his lawful death sentence for over 35 years, but the court's rejection today of Smith's speculative claims removes an obstacle to finally seeing justice done," he said.
The ruling comes a week after a U.N. human rights agency expressed alarm over the state's intent to execute Smith by nitrogen hypoxia, stating it will be the first attempt at such an execution ever.
The experts, in a release on Jan. 3, expressed concerns that it could cause grave suffering and that there is "no scientific evidence to prove otherwise."
