Alabama Schedules A Second Execution for Kenneth Smith, Using Nitrogen Gas for the First Time in U.S. History

On November 8, 2023, Alabama Governor Kay Ivey sched­uled an exe­cu­tion date for Kenneth Smith, mark­ing the first attempt by a U.S. state to use nitro­gen gas in an exe­cu­tion. Mr. Smith was con­vict­ed of the 1988 mur­der-for-hire death of Elizabeth Sennett in Jefferson County, Alabama and has been on death row for near­ly 34 years. Following the state Supreme Court’s 6 – 2 deci­sion green­light­ing Attorney General Steve Marshall’s request for an exe­cu­tion war­rant, Gov. Ivey set a 32-hour exe­cu­tion date time­frame begin­ning on January 25, 2024. Alabama pre­vi­ous­ly attempt­ed to exe­cute Mr. Smith in November 2022, but exe­cu­tion offi­cials failed to suc­cess­ful­ly set IV lines for the lethal injec­tion drugs and even­tu­al­ly halt­ed their efforts. The set­ting of IV lines was an issue in all three botched exe­cu­tion attempts Alabama made in 2022, includ­ing the exe­cu­tion of Joe James and attempt­ed exe­cu­tion of Alan Miller.

In a state­ment from Gov. Ivey’s spokesper­son, Gina Maiola, she told the press that ​“the exe­cu­tion will be car­ried out by nitro­gen hypox­ia, the method pre­vi­ous­ly request­ed by [Mr. Smith] as an alter­na­tive to lethal injec­tion.” Oklahoma and Mississippi are the only oth­er states that autho­rize the use of nitro­gen hypox­ia as a method of execution.

Mr. Smith’s attor­neys have filed a fed­er­al law­suit in efforts to stop the exe­cu­tion, stat­ing that Alabama’s use of nitro­gen hypox­ia forces Mr. Smith to be a ​“test sub­ject for this nov­el and exper­i­men­tal method.” Those who sup­port the use of nitro­gen hypox­ia can only the­o­rize that the method will be pain­less and quick, but oppo­nents have ​“likened it to human exper­i­men­ta­tion.” Execution by nitro­gen hypox­ia ulti­mate­ly results in death by suf­fo­ca­tion, as an indi­vid­ual breathes in nitro­gen, depriv­ing the body and vital organs of oxy­gen. According to ADOC’s exe­cu­tion pro­to­col, nitro­gen ​“will be admin­is­tered for 15 min­utes or five min­utes fol­low­ing a flat­line indi­ca­tion on the EKG, whichev­er is longer.”

Mr. Smith’s fed­er­al fil­ing also notes that eleven jurors did not believe he should be exe­cut­ed, and instead rec­om­mend­ed a sen­tence of life with­out parole (LWOP). However, the tri­al judge over­rode the jury’s deci­sion and sen­tenced Mr. Smith to death. In 2017, Alabama abol­ished judi­cial over­ride, but many pris­on­ers like Mr. Smith whose jury rec­om­men­da­tions for life were over­rid­den remain on death row.