A federal judge has authorized the execution of Kenneth Eugene Smith, a convicted contract assassin who would be the first inmate put to death in Alabama by nitrogen hypoxia. The decision comes after a motion to block the execution by Smith’s defense team, who have argued that the method would represent double jeopardy and a violation of Smith’s constitutional rights.
In 1988, Smith was found guilty of murder for a crime in which he and his accomplice were paid $1,000 each. After being sentenced to death in 2022, a botched lethal injection attempt left him alive. Now, Alabama has announced its intention to execute Smith using a new execution method, and his attorneys have continued to argue that it would be unjust and inhumane.
However, U.S. District Court Judge R. Austin Huffaker rejected the motion on Wednesday, stating that “Smith is not guaranteed a painless death.” He further explained that the court could not conclusively determine that the proposed protocol for nitrogen hypoxia would constitute cruel and unusual punishment, as it is a new and untested method.
“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,” Huffaker wrote. He also noted that lethal injection was once a new and untested method as well, and has since become a widely accepted form of execution.
Huffaker acknowledged that Smith had previously argued for execution by nitrogen hypoxia, as he believed it would delay his execution while other lethal injection executions were carried out. However, the judge stated that Alabama is now close to finalizing a protocol for the new method, and it is an important step in holding Smith accountable for his crime.
Attorney General Steve Marshall also commented on the decision, saying that Smith had “avoided his lawful death sentence for over 35 years,” but the court’s ruling removes an obstacle to finally seeing justice served. However, the United Nations has raised concerns about the execution, alleging that Alabama has failed to prove that the method would not cause a “painful and humiliating death” for Smith.
Republican Rep. Mike Rogers of Alabama criticized the U.N.’s intervention, pointing out that “China unjustly executes thousands per year, including nonviolent offenders, all while committing genocide.” He added, “so naturally, the UN Human Rights Council is focusing their efforts on stopping a humane method of execution on a convicted murderer in 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.https://t.co/jq8ZGJwieT
— Mike Rogers (@RepMikeRogersAL) January 4, 2024
Smith’s execution date is set for January 25, and it will mark the first time that a state has used nitrogen hypoxia as a form of capital punishment. The method involves placing a mask over the inmate’s nose and mouth, gradually replacing the air with nitrogen gas, which causes death by a lack of oxygen. This is believed to be a painless method of execution, but it has not yet been proven in practice.