A federal judge has given the green light to the execution of a convicted contract killer who would be the first person killed by nitrogen hypoxia.
Kenneth Eugene Smith, 58, was convicted in a 1988 murder in which he and an accomplice were paid $1,000 each. After being sentenced to death in 2022, a bungled lethal injection procedure left him alive.
After Alabama said it would execute Smith with a new method, his attorneys claimed it was both double jeopardy and a violation of Smith’s constitutional rights.
On Wednesday, U.S. District Court Judge R. Austin Huffaker turned down the attempt to prevent Smith from being executed on Jan. 25, according to Fox News.
“Smith is not guaranteed a painless death,” Huffaker wrote.
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“On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment, rendering it constitutionally infirm under the prevailing legal framework,” Huffaker said, referring to the execution protocol that determines how the method will work.
He noted that lethal injection was also new at one time.
Huffaker said that “there is simply not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially likely to cause Smith superadded pain,” according to AL.com
“It is not lost on the court that Smith vehemently argued for execution by nitrogen hypoxia in his previous litigation only several months ago when he was scheduled for execution by lethal injection,” Huffaker wrote.
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“He likely did so under the belief that the [Alabama Department of Corrections] was nowhere near finalizing and issuing a final nitrogen hypoxia protocol, thereby placing Smith, like any condemned inmate subject to a nitrogen hypoxia execution, in an indefinite holding pattern while other lethal injection executions went forward,” Huffaker wrote.
”With today’s order, Alabama is an important step closer to holding Kenneth Smith accountable for the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” Alabama Attorney General Steve Marshall said in a statement
”Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done,” Marshall.
The United Nations is taking exception to Smith’s execution.
The U.N. carped that Alabama has failed to prove that the execution method will not result in “a painful and humiliating death” for Smith.
Its intervention was not welcomed by Republican Rep. Mike Rogers of Alabama.
“China unjustly executes thousands per year, including nonviolent offenders, all while committing genocide. So naturally, the UN Human Rights Council is focusing their efforts on stopping a humane method of execution on a convicted murderer in Alabama,” Rogers posted on X.
China unjustly executes thousands per year, including nonviolent offenders, all while committing genocide. So naturally, the UN Human Rights Council is focusing their efforts on stopping a humane method of execution on a convicted murderer in Alabama.https://t.co/jq8ZGJwieT
— Mike Rogers (@RepMikeRogersAL) January 4, 2024
Fox News said that the execution method “calls for a respirator-like mask to be placed over Smith’s nose and mouth. Breathable air will gradually be replaced with nitrogen gas, causing the inmate to die of a lack of oxygen — in theory, without the painful sensations of being unable to breathe.”
