The Supreme Court declined Wednesday to block the execution of a convicted murderer in Alabama using an untested method.
State officials botched their first attempted execution of Kenneth Smith by lethal injection in November 2022. Smith, who was sentenced to death for a 1988 murder-for-hire, is scheduled to be executed using nitrogen gas during a 30-hour window beginning Thursday at 12 a.m., per court documents.
The justices’ order denying his request to stay the execution includes no explanation and no noted dissents.
“Having tried and failed to execute Mr. Smith by lethal injection on November 17, 2022, the State now intends to use nitrogen hypoxia—a method of execution never before attempted by any state or the federal government—pursuant to a protocol that has never been tested,” his lawyers wrote in a Jan. 18 request to pause the execution.
The Supreme Court also declined Smith’s request for it to take up his case considering whether a second execution attempt is constitutional after a first “previous cruelly willful attempt that resulted in hours of needless pain.”
“His petition does not ask this Court to rule on the constitutionality of nitrogen hypoxia as a method of executing condemned people,” his lawyers wrote. “Mr. Smith’s petition asks this Court to consider whether the Eighth Amendment prohibits another attempt to execute him by any method after ADOC’s previous cruelly willful attempt; the availability of nitrogen hypoxia, lethal injection, or any other method is not relevant to that issue.”
The state argued in its petition that execution by nitrogen hypoxia is “perhaps the most humane method of execution ever devised.”
“Such treatment is much better than Smith gave Elizabeth Sennett nearly thirty-six years ago,” the brief states. “Smith and an accomplice tricked Elizabeth into letting them into her home, only to stab her eight times in the chest and twice in the neck—all to make a quick buck. Now Smith says his execution will be cruel and unusual because fourteen months ago, he was ‘stabbed’ (Pet.8) with a needle to obtain IV access during a prior execution attempt.”
The Alabama Supreme Court upheld the state’s use of nitrogen gas in a 6-2 November decision.
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