The Alabama Supreme Court ruled in a 6-2 decision on Wednesday that the state can use nitrogen gas to execute an inmate, court documents showed.
Alabama Attorney General Steve Marshall filed a motion in August requesting that an execution date be set for Kenneth Eugene Smith, a man who has appealed his position on death row for over a year after officials botched their initial attempt to execute him. The court granted the attorney general’s request for an execution warrant and ordered the governor to pick an execution date for Smith within 30 days of the court’s decision, according to the order.
“Elizabeth Sennett’s family has waited an unconscionable 35 years to see justice served,” Marshall said in a statement. “Today, the Alabama Supreme Court cleared the way for Kenneth Smith to be executed by nitrogen hypoxia for the 1988 murder-for-hire of Elizabeth. Though the wait has been far too long, I am grateful that our talented capital litigators have nearly gotten this case to the finish line.”
Smith and two accomplices stabbed Sennett to death in her home in 1988 after Sennett’s husband, a local preacher, paid them $1000 each to murder his wife so the preacher could collect on the insurance money, according to the motion Marshall filed in August. Police charged Smith with the murder after they found a VCR he had stolen from Sennett’s house at the time of the murder.
Smith was originally scheduled to be executed in November 2022, but staff halted the execution because they “could not find a suitable vein to inject the lethal drugs.” Republican Alabama Gov. Kay Ivey paused lethal injections after the botched attempt (the second failed execution in two months), and ordered a full review of the state’s execution process.
The suggested method would force the inmate to breathe in pure nitrogen gas, causing him to suffocate in what supporters say would be a relatively painless death, The Associated Press reported. Nitrogen makes up 78% of earth’s atmosphere and is completely harmless when breathed alongside oxygen.
Smith’s attorneys claimed that state officials are using Smith as a subject of human experimentation and claimed that the court was using death by nitrogen as a way to quash Smith’s lawsuit against lethal injections, according to the AP. Currently three states — Alabama, Oklahoma and Mississippi — have legalized the use of nitrogen for inmate executions.
Smith will be the first individual executed by nitrogen hypoxia since the capital punishment method became legal in 2018, according to the AP.
The attorney general’s office declined to comment further on the matter
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