Sometime Thursday, the State of Alabama will attempt, for a second time, to execute Kenneth Eugene Smith. Smith has been on Alabama's Death Row since 1988 (that would be nearly 36 years) for the murder-for-hire of Elizabeth Sennett. The failed execution attempt was by lethal injection. The Supreme Court has cleared the way, and the "second time's the charm" attempt will be made by using a new and untested nitrogen hypoxia method where the condemned's oxygen supply is replaced with nitrogen, causing unconsciousness and, if luck holds death.

Smith and his co-defendants, Billy Gray Williams and John Forrest Parker, were hired by Elizabeth's husband, Church of Christ pastor Charles Sennett, Sr., for $1,000 each to kill her. That is a premium over the $20 and a bottle of Night Train that was rumored to be the going price where I was raised. Investigators became suspicious that the home invasion scene was staged because a VCR was taken, but Elizabeth's purse containing $400 and other valuables was left behind. A Crime Stoppers hotline tip gave the police the names of the killers in a couple of days. As one of those identified in the tip was a tenant in a property owned by the Sennets, the investigation quickly focused on the Reverend Sennett. Police questioned him, and when he was released, he went to his truck and shot himself.

At trial, all three were convicted. Williams received life without parole, and Parker and Smith got a death sentence. Parker was executed in 2010. Williams died in prison in 2020. This leaves Smith as the only loose thread in the case.

Smith's date with the executioner arrived on November 17, 2022.

At 10 p.m., ADOC’s IV team entered the execution chamber and began to attempt to set an IV line. Around the same time, the U.S. Supreme Court lifted the Eleventh Circuit’s stay. It is unclear from the complaint whether the IV team began jabbing Smith’s arms and hands with needles before or after the stay was lifted. At one point in the process, Smith informed an execution team member that executioners were painfully inserting the needle in his muscle. According to the complaint, the team member responded, “No I’m not.”

The execution team then adjusted the gurney to place Smith into an inverted crucifixion position, then left the room for several minutes. Upon their return, they injected Smith with an unknown substance, which Smith’s counsel believe to be “some sort of sedative and/or anesthetic.” Smith “specifically objected to this injection,” the complaint says, as the State “had been ordered not to use ‘intramuscular sedation’ during his execution.”

Subsequently, an individual of “unknown medical credentials … started repeatedly stabbing [Smith’s] collarbone area with a large needle” in an attempt to begin placing a central line IV, and a prison official “grabbed and held [Smith’s] head away from the area where the needle was being inserted.” Smith describes sharp and intense pain, “as though he were being ‘stabbed’ in the chest” as the individual “repeatedly jabbed him … underneath his collarbone.” Unbeknownst to Smith, around 11:20 pm, “unverified reports that the execution may have been called off started circulating.”

Smith’s lawyers emailed state officials for confirmation that the execution had been called off, but did not receive a response. Sometime before midnight, the execution team told Smith “it’s over with.” When guards came to remove him from the execution chamber, Smith was trembling, sweating, hyperventilating, dizzy, and could not lift his own arms to be handcuffed or walk unassisted.

Because Smith's failed execution was the third in a row for Alabama, the Alabama Department of Corrections looked for something they thought their staff could handle. The answer was nitrogen hypoxia.

According to the U.S. Chemical Safety and Hazard Investigation Board, in humans, "breathing an oxygen deficient atmosphere can have serious and immediate effects, including unconsciousness after only one or two breaths. The exposed person has no warning and cannot sense that the oxygen level is too low." In the US, at least 80 people died from accidental nitrogen asphyxiation between 1992 and 2002.^[3] Hazards with inert gases and the risks of asphyxiation are well-established.^[4]

In August 2023, Alabama released its protocol for tomorrow's execution.

What is known is that Mr. Smith will be led from his cell in the William C. Holman Correctional Facility to the prison’s death chamber. The complex is in Atmore, Ala., about 55 miles northeast of Mobile, and five reporters will be allowed to witness the execution. Mr. Smith will be put on a gurney and a mask will be placed over his face, and then he will be given two minutes to say his last words. Then, the prison warden or an assistant will initiate the pumping of the gas into Mr. Smith’s mask for at least 15 minutes.

We'll find out what happens next on Thursday.

The Alabama attorney general's office has urged the court to allow the execution to proceed as planned, with Alabama Solicitor General Edmund LaCour telling judges it's the "most painless and humane method of execution known to man." The state has argued the gas will knock him unconscious within seconds and cause death within minutes.

But Smith's lawyers and other critics have emphasized the unknown problems that could arise and whether it's a violation of the constitutional ban on cruel and unusual punishment, as they say they can't predict how Smith will react once the nitrogen gas is switched on.

Specifically, Smith's attorney, Robert Grass, has argued oxygen could leak into the mask delivering the nitrogen, potentially prolonging the execution or leaving him in a vegetative state instead of killing him by depriving him of oxygen. 

In regards to that point and the question of what would happen if Smith began to vomit, LaCour said the scenarios were unlikely to happen, and if he did begin to vomit, the state would not halt the execution because the nitrogen gas flow rendering him unconscious would be "almost instantaneous."

This case is a metaphor for what is wrong with the death penalty as administered in the United States.

There is no excuse for a lapse of 35 years between conviction and execution. That is no longer a rational punishment. It is a mechanistic seeking of revenge that has no deterrent value and offers no expression to the violation of a family and a community. My colleague Jeff Charles has the flipside of the mindless drive by the state to kill. In his story of a man on death row that the governor and attorney general agree was unjustly convicted by the state, is scheduled to die because the Oklahoma Court of Criminal Appeals will not entertain the new evidence from the attorney general and the Oklahoma Pardon and Parole Board had a tie vote.

READ: Supreme Court Agrees to Take Up Major Death Penalty Case

The other trend is trying to modernize, for lack of a better word, methods of execution. The electric chair and gas chamber were visualized as "no mess, no fuss" methods of execution to replace hanging. Both turned out to be no more reliable than hanging and frequently a helluva lot more messy. Lethal injection medicalized capital punishment and produced a highly contentious and unreliable method.

The first line of assault on the procedure was eliminating the supply of appropriate drugs for executions by public relations campaigns directed at the manufacturers. Pliable judges have stopped executions because the drugs were past the expiration date or hadn't been proven "safe and effective" or executions.

 Frequently, the condemned is a long-time intravenous drug user. This requires a venous cutdown and the involvement of a physician or appropriately trained medical technician to deal with collapsed veins. Most medical governing bodies frown on this and put the professional license of any medical professional participating in an execution in jeopardy. 

There have been high-visibility cases of staff inserting needles into muscles rather than veins, of chemicals clogging the tubes, and on and on.

While nitrogen hypoxia promises to solve all these problems, so did the electric chair, the gas chamber, and the lethal injection. I suspect nitrogen hypoxia will be every bit as problematic as any of its predecessors. The fact that we're rolling this out in Alabama increases the odds that we will find out what can go wrong at a fairly early date.