Alabama is potentially on the brink of carrying out an untested execution method.
Kenneth Eugene Smith, an inmate who has been on death row since January 1990, may become the first person to be executed by nitrogen hypoxia.
Alabama’s highest court, consisting of all Republican members, voted 6-2 to grant Attorney General Steve Marshall's request for Smith's execution warrant without public comment, PEOPLE reports. Although the court's order did not mandate the use of pure nitrogen, court filings reveal that Marshall intends to employ nitrogen hypoxia, as reported by the Associated Press.
The introduction of nitrogen hypoxia as an execution method is not new to legislative discussions — Alabama, Oklahoma, and Mississippi have authorized its use. However, no state has taken the step to actually use the method, which involves displacing oxygen in the lungs with pure nitrogen.
Advocates argue it's a painless procedure, but given that it is an untested method, there are no practical precedents to substantiate these claims.
The controversy surrounding this method is palpable. Smith’s attorneys, Robert Grass and Andrew Johnson, have expressed strong opposition, calling it an "experimental, never-before-used method," in a statement to AL.com. They went on to describe the method as "unwarranted and unjust".
Smith, who is currently on death row at William C. Holman Correctional Facility, was convicted for the 1988 murder of Elizabeth Dorlene Sennett; the culmination of a tragic plot involving her husband, a local minister entangled in an affair, and debt. Smith was one of two men convicted of capital murder for the murder-for-hire killing of a preacher’s wife, Elizabeth Dorlene Sennett.
Prosecutors said Smith was paid $1,000 by Charles Sennett, the pastor of the Westside Church of Christ in Sheffield, Alabama in 1988, to forcefully take his wife's life, per CBS News.
According to a 2000 decision from the Court of Criminal Appeals of Alabama reviewed by PEOPLE, the crime was orchestrated to resemble a botched burglary and Elizabeth Sennett’s brutal death by stabbing was the result of a scheme to claim insurance money.
Although the jury initially recommended a sentence of life in prison without parole by an 11 to 1 vote, the judge overruled this, sentencing Smith to death instead.
The path to Smith's execution has been fraught with complications. In November of last year, an attempt at lethal injection was abandoned after hours of difficulty, which led to a temporary reprieve as the execution warrant approached expiration. The Alabama officials assured the court they would not attempt lethal injection again for Smith.
Now, Attorney General Marshall's push for setting a new execution date using nitrogen hypoxia has been met with both relief and trepidation. On X, the platform previously known as Twitter, Marshall tweeted late Wednesday night, celebrating the Supreme Court's decision and underlining the extensive duration Elizabeth Sennett's family has waited for justice.
"Elizabeth Sennett’s family has waited an unconscionable 35 years to see justice served,” Marshall wrote, adding: "Though the wait has been far too long, I am grateful that our talented capital litigators have nearly gotten this case to the finish line."
If carried out, Alabama's protocol for nitrogen hypoxia requires the inmate to be strapped to a gurney with a mask, funneling nitrogen gas until death is confirmed.
The order, which was issued on Wednesday, does not set a date for the execution, but states that Governor Kay Ivey is to schedule a timeframe within 30 days of the court's decision.
Execution by nitrogen hypoxia was first authorized in Alabama in 2018 during a shortage of drugs used to carry out lethal injections, but the state has not employed the method to carry out a death sentence. Other states like Oklahoma and Mississippi have also authorized nitrogen hypoxia as a method but have also not utilized it to this date.
As previously reported, The Equal Justice Initiative - a legal advocacy group that has worked on death penalty issues - has spoken out against the method, stating that Alabama has a history of "failed and flawed executions and execution attempts" and "experimenting with a never before used method is a terrible idea," as cited by ITV.
"No state in the country has executed a person using nitrogen hypoxia and Alabama is in no position to experiment with a completely unproven and unused method for executing someone," Angie Setzer, a senior attorney with the Equal Justice Initiative added.
