Attorneys for Kenneth Eugene Smith, set to be put to death on Jan. 25 for the 1988 murder-for-hire of Elizabeth Sennett, filed an appeal Sunday of U.S. District Judge R. Austin Huffaker Jr.’s ruling last week allowing the state to move forward with the execution.
“The Court abused its discretion when it denied a preliminary injunction based on its findings that Mr. Smith is not likely to succeed on the merits of his claims,” Smith’s appeal states.
The execution will be the first to attempt an execution through the use of nitrogen gas. Proponents argue that it is more humane than lethal injection. Critics, including physicians, deny the method will be painless and, in fact, presents more risks.
The method has been used to euthanize animals, but the American Veterinary Medical Association generally discourages its use and recommends that animals be sedated first. The DOC protocol does not indicate if a person executed by the method will receive an sedative prior to exposure to nitrogen.
Smith alleged that the state’s move to have him executed using nitrogen hypoxia violated the Equal Protection Clause of the 14th Amendment because it treated him differently than other people on death row. Other inmates chose to be executed using nitrogen hypoxia as their preferred execution method.
The Montgomery Advertiser reported in 2019 that the previous year, death row inmates were only given days to choose their preferred method of execution. Smith did not choose to be executed by nitrogen gas at that time. But he changed his mind in 2022 in a lawsuit challenging Alabama’s plan to execute him by lethal injection in November of that year.
DOC called off that attempt to execute Smith after staff could not administer the injection through a vein. The failure was the third consecutive botched execution by Alabama, leading Gov. Kay Ivey to impose a brief moratorium on executions.
Huffaker ruled only on a subset of the claims that Smith requested him to review after agreeing with the Alabama Attorney General’s Office to outright dismiss his 14th Amendment claim in the suit that he filed.
Huffaker dismissed Smith’s argument that the state had unjustly scheduled his execution ahead of others who had exhausted their appeals and were subject to be executed using nitrogen hypoxia.
“The Commissioner of the ADOC and the Warden at Holman play no role in selecting which condemned inmate comes next in carrying out a death sentence. In fact, Alabama law merely requires the Defendants to carry out an execution that has been authorized by the Alabama Supreme Court and set by the Governor,” Huffaker wrote in his opinion.
The suit, Huffaker wrote, should have been filed against the Attorney General’s Office because that is the office who submits the names of those to be executed to the Alabama Supreme Court.
Smith’s attorneys argued in their appeal that Smith had standing because the Attorney General’s Office is the agency that represents the ADOC on all legal matters, and acts as an advocate for the agency who will perform the execution and is the correct agency from which to file the suit.
“That is a function of the Attorney General’s role as lawyer for the State,” Smith’s attorneys wrote in the appeal. “In that role, the Attorney General acts in a representative capacity. Nothing in Alabama law expressly authorizes the Attorney General to select condemned people for execution.”
Huffaker also dismissed Smith’s argument that executing him by nitrogen hypoxia violates his Eighth Amendment constitutional protection against cruel and unusual punishment, saying it was possible that oxygen could leak into the mask, delaying or even preventing execution, and that prolonged, diminished oxygen could leave him in a permanent vegetative state.
The judge ruled that his claims were speculative, and that he could not prove a mishap with a nitrogen suffocation.
“(Smith’s) evidence and allegations amount to speculation, at best ‘scientific controvers[y,],’” Huffaker wrote in his ruling.
Smith’s attorneys asked the 11th Circuit to reconsider that ruling.
“The district court ignored other undisputed evidence that confirms that the undisputed risks identified by the experts are real and concrete, including the experience in assisted suicides noted in ADOC’s files where masks have been abandoned as a means of delivering inert gases and the mask manufacturer’s warning that ‘an unsatisfactory face seal . . . dangerously reduces respiratory protection’ and that the mask should not be used absent testing to ensure that there is no leak, which ADOC has no intention of doing before it attempts to execute Mr. Smith,” Smith’s attorneys wrote in the appeal.
Huffaker also ruled against Smith’s claim that the execution method violates his right to practice his religion. Smith plans to audibly pray with his spiritual advisor just prior to execution. However, the staff from the ADOC will place the mask on his face soon after he is placed in the chamber, which could loosen during the prayer when Smith tries to speak when praying. That places him at risk of additional complications during execution because the mask is not sealed.
“While Smith’s evidence does suggest that it is possible that his audible prayer could dislodge the mask during his execution to some extent, Smith has failed to meet the requisite burden required for this court to issue a preliminary injunction,” the judge wrote.
The 11th Circuit Court of Appeals has scheduled to hear oral arguments in the case Thursday, Jan. 19 at 3:30pm EST.
This article was first published by News from the States. Read the original article.
