An Alabama death row inmate facing a novel method of execution on Thursday saw his final appeal to the U.S. Supreme Court for a delay denied, much to the dismay of the court's three liberal justices, The Hill reported.
Kenneth Eugene Smith, who was convicted for a murder-for-hire slaying in 1988, was scheduled to be put to death by way of nitrogen hypoxia, in which a mask pumping pure nitrogen gas was placed over his face to deprive him of oxygen until he lost consciousness and died.
The three liberal jurists -- Justices Sonia Sotomayor, Elena Kagen, and Ketanji Brown Jackson -- all dissented from the court's majority that declined to take up Smith's appeal for a last-minute delay and additional review of Alabama's new method of execution.
According to Courthouse News, Smith had initially agreed to be the first-ever death row inmate executed by nitrogen hypoxia after an attempt to execute him by lethal injection failed in 2022, but then had second thoughts and urged the Supreme Court to consider his concerns that he might suffer undue pain and suffering in violation of the U.S. Constitution's Eighth Amendment.
Without giving any explanation, the Supreme Court's majority on Thursday denied Smith's application for a stay and petition for consideration, but Sotomayor penned a lengthy dissent to that decision, as did Kagen in a much shorter form, which was joined by Jackson.
Justice Sotomayor wrote in her dissent that the new method of execution was "untested," that Alabama had been overly secretive about its execution protocols, that Smith suffered post-traumatic stress from the prior botched execution, and that there were concerns the combination of trauma and oxygen deprivation might make him "vomit" inside the mask and then be asphyxiated or choked to death instead of painlessly passing out.
"Having failed to kill Smith on its first attempt, Alabama has selected him as its 'guinea pig' to test a method of execution never attempted before," she continued, and referencing condemnations from the United Nations and European Union, observed, "The world is watching."
"This Court yet again permits Alabama to 'experiment ... with a human life,' while depriving Smith of 'meaningful discovery' on meritorious constitutional claims," Sotomayor wrote. "This time around, Alabama has adopted a new protocol concerning a never-before-used method of execution. Consistent with Alabama’s 'familiar veil of secrecy over its capital punishment procedures,' it has released only a 'heavily redacted' version of that protocol."
She said that Smith should have been granted a delay to allow time for further review of his claims and the new execution method more generally, as "That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method."
According to the Associated Press, Smith was executed as scheduled and was pronounced dead at 8:25 pm, shortly after he issued a final statement that said: "Tonight Alabama causes humanity to take a step backwards. I'm leaving with love, peace, and light."
The outlet reported that the entire execution took about 22 minutes total, that Smith appeared to remain conscious for several minutes despite prior assertions that he would fall asleep within seconds and that he "shook violently and writhed on the gurney" for several minutes -- though the "shaking and convulsing" was dismissed by prison officials as "involuntary movements" that had been expected.
Alabama Corrections Commissioner John Hamm explained, "That was all expected and was in the side effects that we've seen or researched on nitrogen hypoxia. Nothing was out of the ordinary from what we were expecting." However, Smith's spiritual adviser, Rev. Jeff Hood, told the AP that what he witnessed didn't match the state's predictions and said, "We didn't see somebody go unconscious in 30 seconds. What we saw was minutes of someone struggling for their life."
The AP noted that Smith was sentenced to death for his role in the 1988 stabbing death of Elizabeth Sennett, 45, the wife of pastor Charles Sennett Sr., who hired Smith and another man to kill his wife so he could collect insurance benefits and pay off his deep debt.
The pastor, who committed suicide when he was named as a suspect, had paid $1,000 each to Smith and John Forrest Parker, who was executed in 2010. The victim had been found dead in her home from at least eight separate stab wounds to her chest and neck.
