Legal Law

Supreme Court Approves First Execution by Nitrogen Gas in Bizarre Capital Punishment Case – JONATHAN TURLEY

Today, the state of Alabama will try again to kill Kenneth Eugene Smith. In one of the most bizarre capital punishment cases in the country, the state previously botched an execution of Smith. Everything about the case has been legally irregular in the effort to execute this convicted assassin.

Smith, 58, was convicted in a murder-for-hire case involving the brutal beating and stabbing of Elizabeth Sennett, 45, in 1988. Yet, the jury decided to give him life in prison rather than the death penalty. That was then overruled by the judge who sentenced him to death.

He has remained on death row since 1996. His appeals finally ran out in November 2022 and Alabama attempted to execute him. However, the staff could not find a good vein to use for the intravenous lines. It took so much time that the warrant period expired.

Smith then added a new wrinkle. He demanded death by nitrogen gas, the first such execution in history. That required years of approval of an new regimen and authority. When it was finally approved, Smith then objected to the use of nitrogen gas.  The district court rejected the effort.

In that order, U.S. District Judge Austin Huffaker found that Smith was gaming the system through bait-and-switches:

“Now that Alabama is prepared to carry out his sentence using the method of execution he has consistently declared he prefers, the circumstances have changed. And what was once highly unlikely is now a certainty. With that change, Smith now seeks to enjoin the Defendants from carrying out his death sentence using the Protocol, arguing it unconstitutionally superadds pain such that the court should order the Defendants to amend it or execute him by firing squad, a ‘relatively uncommon and archaic’ method.”

In his denied petition to the U.S. Supreme Court, Smith focused on the cruel aspects of successive execution attempts — a process that was even more uncertain and stressful with the use of “a novel method of execution that has never been attempted by any state or the federal government.”

It failed after a petition to Justice Clarence Thomas. Kenneth Smith is now scheduled for execution today by his previously chosen method of execution.

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