The Supreme Court on Monday rejected a request by Alabama to intervene and allow it to execute a death row inmate by lethal injection, leaving in place a lower court ruling that the prisoner's preferred method must be followed: nitrogen gas.
Kenneth Smith, sentenced to death for murdering Elizabeth Sennett in 1988, has opposed being executed by lethal injection because of the pain it would cause him, arguing in court that it would violate his right to be free from cruel and unusual punishment under the Eighth Amendment of the Constitution. It has suggested, instead, the use of lethal gas, a method that was approved in 2018 in the state of Alabama, but is not yet implemented because it has not been regulated (nor has it been tested anywhere in the United States).
Kenneth Eugene Smith was convicted in 1988 of murder for hire. Alabama Department of Corrections via AP
His case has been in court for some time, and he has even gone through a failed execution attempt last November, from which he was saved at the last minute because they could not successfully place the needle to give him the lethal injection.
His story and claim also came to light when Alabama faced questions about the way it implemented the death penalty, after a series of failures and executions with inconveniences. Alabama then ordered a review of the procedures. In February, Republican Gov. Kay Ivey called for the death penalty to be resumed as soon as the review was completed.
Smith was convicted more than three decades ago along with an accomplice of beating and stabbing Sennett, 45, to death in exchange for a $1,000 payment from her husband, Charles Sennett Sr., court documents show. Sennett was a pastor at Westside Church of Christ in small Colbert County who was racked by debt and wanted to collect life insurance from her. He committed suicide when the murder investigation focused on him as a suspect.
First failed attempt to execute it
Smith's death sentence was initially scheduled for November 17, 2022, but he invoked the Eighth Amendment to prevent it from being carried out. On the afternoon of the day of his execution, the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, agreed that because the state has already approved the use of lethal gas, it could request this method. That night, he also suspended his execution.
That was the first time Alabama asked the Supreme Court for help in Smith's case to overturn this ruling, and the justices agreed to intervene: around 10:20 p.m. they lifted the stay placed on the execution. But little margin remained, and the state was unable to complete the execution before midnight on November 17, the deadline set. Alabama Department of Corrections workers were unable to properly place Smith's IV needle, and the procedure was canceled.
The 57-year-old claimed in court documents after he lay on a stretcher and was pricked with needles for hours before the state called off the execution, according to a report by the news site AL.com.
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The state had gone through two death sentences with drawbacks. The execution of Joe Nathan James Jr., in July 2022, took several hours to carry out due to problems establishing an intravenous line, leading an anti-death penalty group to claim the execution was a disaster. In September, the state suspended Alan Miller's scheduled execution in September due to difficulties injecting his veins. Miller testified in a trial that prison staff pricked him with needles for more than an hour, according to an Associated Press report, at one point and left him hanging vertically on a stretcher before announcing they were going to stop.
Recourse to the Supreme Court
Smith then followed up his argument in district court that the state should not try to execute him again by lethal injection, given the record, while Alabama tried to get a new date.
The state then asked the Supreme Court for a second time to intervene. The country's highest court typically allows prisoners to be executed, and has case law that requires an inmate to show that a proposed alternative method is not only "feasible" but can be "easily implemented."
[We speak to a death row inmate before he is executed: "Hurry up"]
The state argues that while the state legislature approved nitrogen hypoxia as an alternative execution method, the state has still finalized the protocols. He also says prisoners were given 30 days to choose him at the time, but Smith did not opt for that option.
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But on Monday, the Supreme Court refused to grant Alabama's request to review the case, with a majority of justices voting except for conservatives Clarence Thomas and Samuel Alito. Thomas, in his dissent, called the case "last-minute litigation" and questioned whether a new, unproven method was a readily available option.
John Forrest Parker, the other man convicted of the murder of the pastor's wife, was executed in 2010. "I'm sorry. I don't expect them to ever forgive me. I'm really sorry," Parker told the victim's children before he was executed.
There have been eleven executions in the United States so far this year, according to the Death Penalty Information Center. Smith's lawyers say the state is already planning to execute other death row inmates using lethal gas.
With information from NBC News, AL.com, CNN and The Associated Press.