After U.S. Supreme Court Overturns Lethal Injection Stay, Alabama Tries and Fails to Execute Kenneth Eugene Smith

Kenneth Eugene Smith​’s November 17 exe­cu­tion was halt­ed after Alabama offi­cials spent an hour try­ing to set intra­venous lines for the lethal injec­tion drugs. Earlier that evening, Smith’s exe­cu­tion had been stayed by the U.S. Court of Appeals for the Eleventh Circuit, but the U.S. Supreme Court vacat­ed the stay over the dis­sent of three jus­tices. The set­ting of IV lines has been an issue in all 3 exe­cu­tions attempt­ed by Alabama this year, includ­ing the botched exe­cu­tion of Joe Nathan James and the attempt­ed exe­cu­tion of Alan Miller. 

The issues that arose in Smith​’s attempt­ed exe­cu­tion are famil­iar ones for Alabama. In 2018, the exe­cu­tion team spent more than two hours try­ing to set an intra­venous line on Doyle Hamm, attempt­ing to insert IV nee­dles more than 10 times into Hamm’s feet, legs, and right groin, caus­ing bleed­ing in his groin, and like­ly punc­tur­ing his blad­der. The autop­sy evi­dence from Joe Nathan James’ three-hour exe­cu­tion in July 2022 showed numer­ous punc­ture wounds, bruis­ing, a deep inci­sion, and shal­low lac­er­a­tions. In September 2022, exe­cu­tion team mem­bers attempt­ed to set an IV line for approx­i­mate­ly 90 min­utes, pok­ing Alan Miller with a nee­dle as many as 18 times before end­ing the exe­cu­tion attempt close to midnight.

Alabama Department of Corrections (ADOC) Commissioner John Hamm told the media on-site ​“at about 11:21, we decid­ed we would not be able to fin­ish that pro­to­col before the mid­night hour when the death war­rant expired.” He did not respond to a reporter’s ques­tion regard­ing the num­ber of punc­tures, accord­ing to The Montgomery Advertiser, but he did spec­i­fy that ​“med­ical per­son­nel” were on the execution team. 

According to the Montgomery Advertiser, Smith’s lawyers sus­pect that pro­to­col may have not been fol­lowed by ADOC. Andy Johnson, a lawyer for Smith, wrote to the Montgomery Advertiser that ​“It is Plaintiff’s counsel’s under­stand­ing that Mr. Smith was strapped to a gur­ney for approx­i­mate­ly four hours last night,” while his stay was pend­ing, then grant­ed, and then pend­ing review from the U.S. Supreme Court. Lawyers for Smith have filed motions, like those filed after Miller’s attempt­ed exe­cu­tion, to pre­serve evi­dence and com­mu­ni­ca­tions relat­ed to the can­celed exe­cu­tion; they also intend on arrang­ing an inter­view with their client and a med­ical eval­u­a­tion to doc­u­ment any injuries sustained.

In a state­ment released after the can­celed exe­cu­tion, Alabama Governor Kay Ivey said ​“Some three decades ago, a promise was made to” the victim’s fam­i­ly that ​“jus­tice would be served through a law­ful­ly imposed death sentence…Although that jus­tice could not be car­ried out tonight because of last minute legal attempts to delay or can­cel the exe­cu­tion, attempt­ing it was the right thing to do.”

Criticizing Alabama’s failed attempt, Maya Foa, joint Executive Director of Reprieve U.S., told Newsweek in a writ­ten state­ment that ​“Being pre­pared for exe­cu­tion, strapped to a gur­ney and stabbed again and again with nee­dles as prison offi­cials try and fail to kill you is tor­ture. It is the def­i­n­i­tion of ​‘cru­el and unusu­al pun­ish­ment’ and even sup­port­ers of the death penal­ty must rec­og­nize that it is time for Alabama to think again.”

Foa added that ​“con­demned pris­on­ers often spend their final hours in ago­niz­ing pain and dis­tress. With each grue­some scene in the death cham­ber, we are wit­ness­ing the con­se­quences of per­sist­ing with a bro­ken method of exe­cu­tion, in real time.”

The day before Smith’s exe­cu­tion, the Supreme Court had denied a stay on his chal­lenge to the use of jury over­ride to sen­tence him to death against the wish­es of 11 jurors who vot­ed for a life sen­tence. At this time, his appeal of the denial of his lethal injec­tion chal­lenge remained pend­ing at the Eleventh Circuit. Smith had chal­lenged Alabama’s use of lethal injec­tion giv­en recent instances in which the exe­cu­tion team spent hours try­ing to set IV lines, result­ing in punc­ture wounds, bruis­ing, and ​“cut downs”. Smith argued that the way that Alabama con­duct­ed lethal injec­tions would like­ly result in ​“super­added pain” beyond any pain inher­ent to a typical execution. 

The after­noon of November 17, the Eleventh Circuit heard oral argu­ments on Smith’s appeal, and that evening the court reversed the dis­trict court’s dis­missal of his case. At the same time, the court denied as moot Smith’s request for a stay pend­ing appeal since it was decid­ing the appeal in the same order. Based on the Eleventh Circuit’s rul­ing, Smith request­ed a stay of exe­cu­tion from the fed­er­al dis­trict court, but the dis­trict court denied it and Smith appealed. At almost 8pm Central Time, the Eleventh Circuit grant­ed Smith a stay, stat­ing that Smith had been try­ing to lit­i­gate his lethal injec­tion claim before the state sought a death war­rant and that he had a like­li­hood of suc­cess on the mer­its of his claim. 

Alabama appealed, and the U.S. Supreme Court vacat­ed the stay with­out com­ment after 10pm Central Time. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dis­sent­ed. After the U.S. Supreme Court dis­solved the stay and allowed Smith’s exe­cu­tion to go ahead, the state spent an hour punc­tur­ing him mul­ti­ple times to attempt to set an IV line. The state aban­doned its attempts after it became clear that the exe­cu­tion could not go for­ward before the expi­ra­tion of Smith’s death war­rant at midnight.

Since 2018 no state but Alabama has had to aban­don an exe­cu­tion in progress. Before that, the last exe­cu­tion stopped after attempts to set IV lines was that of Alva Campbell in Ohio in 2017. The only oth­er lethal injec­tion stopped mid­stream was Ronnell Broom’s in Ohio in 2009. This means that Alabama has had more abort­ed lethal injec­tions in the past few years than the rest of the coun­try has overall.