Judge rules Kenneth Smith execution by nitrogen gas can move forward

Convicted murderer expected to be put to death later this month in first execution of its kind

This undated photo provided by the Alabama Department of Corrections shows inmate Kenneth Eugene Smith (Alabama Department of Corrections)

A federal judge has ordered that the execution of Kenneth Eugene Smith, the first ever by nitrogen gas, can go ahead as planned in Alabama later this month.

Smith’s attorneys filed a November appeal against the decision to execute him using the method, which has never been tested, and has been condemned by the United Nations as possible “cruel, inhumane and degrading treatment.”

Smith’s attorneys claimed the decision would infringe on their client’s constitutional rights.

The 58-year-old inmate is set to be put to death in Alabama between 25 January and 26 January. The state previously tried to execute Smith by lethal injection in November of 2022, but the attempt failed because officials could not place intravenous lines into his system to administer the drugs.

His attorneys now say their client is being used as a “test subject for this novel and experimental method.” In a statement to The Associated Press, Robert Grass, Mr Smith’s attorney, said he’d appeal the decision. If that happens, the case could make its way to the US Supreme Court.

In his ruling, US District Judge R Austin Huffaker argued that Smith is not “guaranteed a painless death.” Advocacy organisations have voiced concerns over the new method potentially being painful if there is a dislodging of the mask or vomiting occurs during the procedure.

“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,” Judge Huffaker wrote.

He added that there is not enough research to suggest that the untested method is “substantially likely to cause Smith superadded pain short of death or a prolonged death.

“It could, in a highly theoretical sense, but only if a cascade of unlikely events occurs,” he said.

In a statement, Alabama Attorney General Steve Marshall said, “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.

“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.”

In 1996, a jury convicted Smith of capital murder over 45-year-old Ms Sennett’s death in 1988. He was part of a two-person team hired to kill the pastor’s wife in northwestern Alabama.

Smith was reportedly paid $1,000 to commit the crime for her husband, who had sunk deep into debt and was seeking an insurance payout. Officials discovered Ms Sennett’s body with multiple stab wounds. Her husband reportedly died by suicide after officials narrowed in on him during the murder investigation.

The jury voted 11 to 1 in favor of Smith serving life in prison but the decision was overruled by the judge at the time who handed him the death penalty.

The Independent and the non-profit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to its Business Leaders Declaration Against the Death Penalty – with The Independent as the latest on the list. We join high-profile executives such as Ariana Huffington, Facebook’s Sheryl Sandberg and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.