Ala. executes inmate with nitrogen gas
First time the method has been used in U.S. for death penalty
ATMORE, Ala. — Alabama executed a convicted murderer with nitrogen gas Thursday, putting him to death with a firstof-its-kind method that once again placed the U.S. at the forefront of the debate over capital punishment. The state said the method would be humane, but critics called it cruel and experimental.
Officials said Kenneth Eugene Smith, 58, was pronounced dead at 8:25 p.m. at an Alabama prison after breathing pure nitrogen gas through a face mask to cause oxygen deprivation. It marked the first time a new execution method has been used in the United States since lethal injection, now the most commonly used method, was introduced in 1982.
The execution took about 22 minutes, and Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.
In a final statement, Smith said: “Tonight Alabama causes humanity to take a step backwards . ... I'm leaving with love, peace and light.”
He made the “I love you sign” with his hands toward family members who were witnesses. Alabama Gov. Kay Ivey said the execution was justice for the murder-for-hire killing of 45-year-old Elizabeth Sennett in 1988.
“After more than 30 years and attempt after attempt to game the system, Mr. Smith has answered for his horrendous crimes . ... I pray that Elizabeth Sennett's family can receive closure after all these years dealing with that great loss,” Ivey said in a statement.
The state had previously attempted to execute Smith in 2022, but the lethal injection was called off at the last minute because authorities couldn't connect an IV line.
The execution came after a last-minute legal battle in which his attorneys contended the state was making him the test subject for an experimental execution method that could violate the constitutional ban on cruel and unusual punishment. Federal courts rejected Smith's bid to block it, with the latest ruling coming Thursday night from the U.S. Supreme Court.
Justice Sonia Sotomayor, who along with two other liberal justices dissented, wrote:
“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig' to test a method of execution never attempted before. The world is watching.”
The majority justices did not issue any statements.
The state had predicted the nitrogen gas would cause unconsciousness within seconds and death within minutes. State Attorney General Steve Marshall said late Thursday nitrogen gas “was intended to be — and has now proved to be — an effective and humane method of execution.”
Asked about Smith's shaking and convulsing on the gurney, Alabama corrections Commissioner John Q. Hamm said they appeared to be involuntary movements.
“That was all expected and was in the side effects that we've seen or researched on nitrogen hypoxia,” Hamm said. “Nothing was out of the ordinary from what we were expecting.”
Some doctors and organizations had expressed alarm about the method, and Smith's attorneys asked the Supreme Court to halt the execution to review claims it violates the constitutional ban on cruel and unusual punishment and deserved more legal scrutiny before it was used on a person.
“There is little research regarding death by nitrogen hypoxia. When the State is considering using a novel form of execution that has never been attempted anywhere, the public has an interest in ensuring the State has researched the method adequately and established procedures to minimize the pain and suffering of the condemned person,” Smith's attorneys wrote.
In her dissent, Sotomayor said Alabama has shrouded its execution protocol in secrecy, releasing only a heavily redacted version. She also said Smith should have been allowed to obtain evidence about the protocol and to proceed with his legal challenge.
“That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method,” Sotomayor wrote.
“Twice now this Court has ignored Smith's warning that Alabama will subject him to an unconstitutional risk of pain,” Sotomayor wrote. “I sincerely hope that he is not proven correct a second time.”
Justice Elena Kagan wrote a separate dissent and was joined by Justice Ketanji Brown Jackson.
In his final hours, Smith met with family members and his spiritual adviser, according to a prison spokesperson. He ate a last meal of T-bone steak, hash browns, toast and eggs slathered in A1 steak sauce, the Rev. Jeff Hood, his spiritual adviser, said by telephone before the execution was carried out.