Kenneth Smith knows very well the ritual of the last day. He had an experience in November 2022 and everything indicates that he will reissue it again this Thursday. The United States Supreme Court on Wednesday declined a first request to stop the execution of this Alabama inmate, who already survived a similar situation, but this time they will use a never-tried method on him: asphyxiation by nitrogen gas.
Even veterinarians recommend not using it on animals for ethical reasons and causing them inhumane suffering.
The Supreme Court, without any argument or recording any contrary vote among the nine judges, denied the defense lawyer’s request to block this capital punishment because, after failing with a lethal injection 14 months ago, attempting it a second time would be a cruel and cruel punishment. unusual that violates principles of the Constitution.
Shortly after, the Alabama federal appeals court frustrated a second avenue of claim. On this occasion, the three judges refused to stop the nitrogen execution procedure, considering that they were not convinced that this untested method violates the constitutional prohibition of applying cruel and unusual punishments.
Smith’s lawyers argued that they were using the inmate to conduct an experiment. Everything indicates that, as a matter of urgency, this other claim will end up today in the Supreme Court, where a decision is expected in line with the one taken this Wednesday.
“There is no doubt that nitrogen hypoxia is new and novel,” the majority of the federal appeals court responded in its ruling this Wednesday. “Because we are bound by Supreme Court precedent, Smith cannot say that the use of nitrogen, as a new method, will amount to cruel and unusual punishment that violates the Eighth Amendment by itself,” he reflected.
But in a dissenting opinion, Justice Jill Pryor expressed concern about what might happen to Smith in the death chamber with an untested method. “I fear that the cost may be Smith’s human dignity, and ours,” this judge lamented.
So, in the midst of this judicial ping pong, the execution of Smith, 58 years old and practically 36 on death row, is expected this Thursday in response to the sentence for the death of Elizabeth Sennett in 1988. He is the only that remains alive of the protagonists of the case. Charles Senneth, pastor of a Protestant church, commissioned the murder of his wife to collect death insurance. He had a lover. Seeing himself surrounded, he committed suicide. John Forrest Parker, Smith’s colleague and alleged perpetrator, was executed in 2010.
In November 2022, Smith was saved from the maximum sentence in Holman prison, in the city of Atmore, when the executioners were unable to find an intravenous line to apply the lethal injection.
On this other occasion, the method involves the application of a mask that covers the nose and mouth and through which the person will be forced to breathe nitrogen, causing death due to lack of oxygen. The state noted in its paperwork that the gas will cause Smith to lose consciousness within seconds and die within minutes. Critics countered that they cannot predict what will happen when an untested execution system is applied, nor how Smith will react once the gas is turned on.
Some US states are in the process of searching for solutions, since several lethal injections, the most common method, have failed or shown deficiencies and due to the difficulty in finding the necessary drugs. Alabama, Mississippi and Oklahoma approved the use of nitrogen in 2018. Only Alabama developed the protocol and committed to its use.
“This is the first time this has been proven and we lack verified information about what may happen,” said defense attorney Robert Grass in his appearance before the federal appeals court. “Using nitrogen means entering unknown territory,” he said.
But the American Veterinary Medical Association wrote a guideline for euthanasia in 2020 in which it maintained that nitrogen hypoxia is not acceptable in the vast majority of mammals because the lack of oxygen “is distressing.”
United Nations experts expressed alarm. “We are concerned that nitrogen hypoxia will result in a painful and humiliating death,” they stated. The UN High Commissioner for Human Rights also called on Alabama to block the execution because “it could constitute torture or other cruel treatment or punishment, inhuman or degrading according to international human rights law.”
State Attorney General Edmund Latour replied that “Alabama has adopted the most painless and humane method known to man.” He insisted that this treatment “is much better than the one Smith gave to Elizabeth Sennett 36 years ago.”
Doctors said even a small amount of oxygen entering the mask when Smith breathes nitrogen could prolong the time needed to die and would slow asphyxiation. Smith’s lawyers pointed out that any defect in gas distribution can cause pain overload. “There is a risk that he may vomit and choke, that he may experience the sensation of feeling suffocated or potentially remain in a vegetative state,” they reiterated.
There was an avalanche of legal appeals seeking to convince the appeals court to stop or continue the execution. Smith’s attorneys expressed concern that his client had begun vomiting repeatedly. “Possibly as a result of post-traumatic stress after the previous failed attempt,” they stressed.
But the state attorney discredited Smith’s claim, who recalled that he requested the nitrogen solution thinking that this step would not be taken, by emphasizing that there was no confirmation of the vomiting. As a precaution, they decided to give him the last menu in the morning and then give him fluids during the day to limit the risk of him choking on his vomit during the execution. Alabama Attorney General Steve Marshall said the concerns raised by the inmate “are speculative.”