Supreme Court denies 11th-hour attempt to halt Alabama execution: Updates

On Thursday evening the request for a stay of execution by Kenneth Smith’s lawyers was once again denied.

The ruling received dissent from Justice Sonia Sotomayor who wrote that the state of Alabama had selected Smith as a “guinea pig” by using the untested method of execution – suffocation by nitrogen gas.

“The world is watching. This court yet again allows Alabama to ‘experiment… with human life’,” Justice Sotomayor wrote.

The UN has previously said that the scheduled execution of Kenneth Eugene Smith using the new and experimental method of asphyxiation by nitrogen gas would amount to “torture”.

The wholly untested procedure has been decried as inhumane by death penalty experts and deemed unfit even for killing most mammals.

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Kenneth Eugene Smith was not provided with a full copy of the protocol for his execution by nitrogen hypoxia until November 2023, his lawyers have said, as they once again petitioned for a stay of execution.

In court documents filed on Thursday, lawyers said that Smith “did not endorse (and could not have endorsed) the procedures in the Protocol before he had seen them”.

“Mr Smith has not walked away from his allegation that nitrogen hypoxia is a feasible and available alternative method of execution to lethal injection. When he made the argument he had not seen ADOC’s Protocol for executing condemned people by nitrogen hypoxia,” the filing stated.

“He was only provided with a heavily redacted copy of the Protocol in late August, at the same time that the State informed him that he would be the first person subject to it and moved in the Alabama Supreme Court for authority to execute him under its procedures.

“Mr Smith did not receive an unredacted copy of the Protocol until late November when the district court ordered Respondents to produce it. Mr Smith did not endorse (and could not have endorsed) the procedures in the Protocol before he had seen them.”

The filing continued: “And, of course, the ‘devil is in the details’ of the Protocol, so his current challenge is to the procedures in the Protocol—specifically to the use of a mask to deliver nitrogen instead of other feasible and available alternatives, including a hood or a closed chamber—not to nitrogen hypoxia per se.

“When the State permitted condemned people in Alabama to elect nitrogen hypoxia as the method of their execution, ADOC adopted an election form that expressly provided that those condemned people so electing did not ‘waive [their] right to challenge the constitutionality of any protocol adopted for carrying out execution by nitrogen hypoxia.’

“Neither did Mr. Smith when he alleged that nitrogen hypoxia was a feasible and available alternative method of execution in the Lethal Injection Action.”

Kenneth Eugene Smith is set to become the first person in the US to be executed using nitrogen gas.

But how did he end up on Death Row in Alabama in the first place?

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Alabama Governor Kay Ivey said that the method of execution for Kenneth Eugene Smith had been “thoroughly vetted” and she was “confident” that they were ready to proceed.

“Nitrogen hypoxia is the method previously requested by the inmate as an alternative to lethal injection,” Governor Ivey said in a statement.

“This method has been thoroughly vetted, and both the Alabama Department of Corrections and the Attorney General’s Office have indicated it is ready to go. The Legislature passed this law in 2018, and it is our job to implement it. I am confident we are ready to move forward.”

It comes amid ongoing debate about the method – which is previously untested.

Ahead of his planned execution on Thursday, Kenneth Smith received his last meal at 10am.

He is not be allowed to consume liquids after 4pm, approximately two hours before the execution. Alabama inmates are provided three meals a day.

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A declaration from Terry Raybon, warden of Holmon Correctional Facility, detailed Smith’s eating arrangements in his final hours.

Smith was given his final meal at 10am on Thursday morning, but then not permitted any solid food after that time.

This included prohibition of purchasing snacks from vending machines on site. He will be allowed clear liquids until 4pm.

The document stated that the execution would begin no sooner than 6pm, “at which point Smith will have had no solid food for eight hours and no liquids for two hours”.

In a statement, The Innoncence Project – a non-profit organisation that works to help free the wrongfully imprisoned – condemned the use of the “untested” method of execution on Kenneth Eugene Smith.

“Today, the state of Alabama is scheduled to conduct an execution via nitrogen hypoxia, a method that has never been used on a human being and is prohibited for the euthanasia of animals. This is Alabama’s second attempt to execute Kenneth Smith, who survived a botched lethal injection just 14 months ago,” the statement read.

“The Innocence Project – whose mission is to free the innocent, prevent wrongful convictions and create fair, compassionate and equitable systems of justice for everyone – currently represents multiple individuals under sentence of death.

“Because more than 3,000 innocent people have been wrongfully convicted and exonerated in the United States, including almost 200 who were sentenced to death; because it is likely that innocent people have been executed; and because no person should be subjected to torture, we condemn Alabama’s use of this untested method of execution.

“Our hearts go out to the friends and families of Elizabeth Sennett and Kenneth Smith.”

Ahead of the planned execution, Kenneth Eugene Smith’s spiritual adviser, Reverend Doctor Jeff Hood, released a statement on behalf of both of them.

The statement, shared with The Independent, said: “The eyes of the world are on this impending moral apocalypse.

“Our prayer is that people will not turn their heads. We simply cannot normalize the suffocation of each other.”