Gov. Kay Ivey announces that Kenneth Eugene Smith will be executed on January 26
On Wednesday, Alabama Governor Kay Ivey announced that she had set the timeframe for the execution of Kenneth Eugene Smith to occur beginning at midnight on Thursday, January 25, 2024, and expiring by 6:00 a.m. on Friday, January 26, 2024. Smith was one of two men who were each paid $1000 to kill Elizabeth Sennett on behalf of her husband, a preacher who was deeply in debt and wanted to collect on her life insurance. The execution will be the first person ever to be executed by nitrogen hypoxia. This is the method previously requested by the inmate as an alternative to lethal injection. Smith was scheduled to be executed by lethal injection back on September 22, but the state of Alabama called off the execution when Alabama Department of Corrections workers were not able to access Smith’s veins before the deadline passed. Proponents argue that nitrogen hypoxia is more humane than electrocution or lethal injection. The Alabama Supreme Court has approved allowing the state to begin executing people by nitrogen hypoxia. Nitrogen hypoxia is a method of suffocating a person by forcing them to breathe pure nitrogen, starving them of oxygen until they die. Nitrogen is an inert gas that makes up 78 percent of the air we breathe, passing in and out of the body harmlessly with every breath. A person can breathe pure nitrogen and not immediately realize there is a problem, but their cells and organs are slowly being deprived of the oxygen needed to function and will rapidly start to break down. Someone deprived of oxygen will pass out in minutes and die soon after when the heart stops beating. To connect with the author of this story or to comment, email brandonmreporter@gmail.com.
Alabama Supreme Court gives go ahead for execution by nitrogen hypoxia
Ralph Chapoco, Alabama Reflector Alabama is one step closer to becoming the first state to execute someone by nitrogen hypoxia. In a 6-2 decision handed down Wednesday, the Alabama Supreme Court allowed the state to proceed with the execution of Kenneth Eugene Smith, convicted of the 1988 murder of Elizabeth Sennett, under that method. Alabama Attorney General Steve Marshall said in a statement Wednesday that Sennett’s family had “waited an unconscionable 35 years to see justice served.” “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,” the statement said. Chief Justice Tom Parker and Associate Justice Greg Cook dissented but gave no additional comment. Nitrogen hypoxia has never been used on a human being as a means of execution, and professional veterinary associations have discouraged its use in the euthanization of animals. Smith’s attorneys said in a statement Thursday that they were disappointed in the decision and would continue to work through the judicial process. Smith currently has an appeal pending with the Alabama Court of Criminal Appeals claiming that attempting to execute him a second time violates his constitutional rights. “It is noteworthy that two justices dissented from this Order,” wrote Robert Grass, an attorney for Smith. “Like the eleven jurors who did not believe Mr. Smith should be executed, we remain hopeful that those who review this case will see that a second attempt to execute Mr. Smith – this time with an experimental, never-before-used method and with a protocol that has never been fully disclosed to him or his counsel – is unwarranted and unjust.” The order gives the Alabama Department of Corrections the authority to carry out Smith’s execution within the time frame set by Gov. Kay Ivey, which cannot happen less than 30 days from Wednesday, when the court published its decision. The Attorney General’s Office filed a motion with the Alabama Supreme Court back in August, requesting the court set a date for Smith’s execution. Smith’s attorneys requested the court reject the state’s motion in September, stating that nitrogen hypoxia has not been tested and only recently released the protocol for using that method of execution. A jury convicted Smith in 1996 in the plot to murder Sennett and voted to sentence him to life without the possibility of parole. The judge in the case overrode the jury recommendation and sentenced Smith to death. Alabama abolished judicial override in 2017, the last state in the country to do so. But the rule was not made retroactive. In May the U.S. Supreme Court upheld a lower court’s decision that allowed him to select his method of execution, in this case is death by nitrogen hypoxia. The high court turned down the appeal by the Alabama Department of Corrections, which argued that Smith was pursuing a delaying tactic. Smith was scheduled to be executed in November following the botched executions of Joe Nathan James Jr. and Alan Miller. However, his execution was called off after ADOC staff repeatedly failed to secure a vein to carry out the execution. Smith’s attorneys wrote in a brief last January that he “continues to experience physical and emotional pain, including lingering pain in his arm, near his collarbone, back spasms, difficulty sleeping, and likely post-traumatic stress disorder” from the failed execution. Death through nitrogen hypoxia became an available method for executing people on death row after the Legislature passed a bill sponsored by Sen. Trip Pittman, R-Montrose, allowing its use. He said that the method was more humane than lethal injection. Doctors and medical ethicists have criticized those claims. “Last year, after Alabama tortured multiple people in botched executions using lethal injection, we encouraged the state to pursue an independent evaluation of its execution protocols,” said Alison Mollman, interim legal director of the ACLU of Alabama. “Governor Ivey and the Alabama Department of Corrections failed to complete an independent review and instead insisted the problem was not having enough time to kill someone. Now, at the urging of Attorney General Steve Marshall, Alabama is rushing to put a man to death with an untested, unproven, and never-before-used method of execution. As Alabama races to experiment on incarcerated people with nitrogen gas, they put the lives of correctional staff, spiritual advisers, the media, and victims at risk by potentially exposing them to an odorless and lethal gas. Using this method has no benefit on public safety. Governor Ivey and Attorney General Marshall have a responsibility to stop the execution of Mr. Smith.” The Death Penalty Information Center, a nonprofit that students and collects data on the death penalty, criticized Alabama’s move toward nitrogen executions in a statement on Thursday. “No state has ever used nitrogen in an execution, and there are still too many unanswered questions for Alabama officials to responsibly move forward with this protocol,” the statement said. “Mr. Smith has already endured one botched execution; he should not now face another attempt that carries this much risk and uncertainty.” Alabama Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Alabama Reflector maintains editorial independence. Follow Alabama Reflector on Facebook and Twitter.
Alabama wants to be the 1st state to execute a prisoner by making him breathe only nitrogen
Alabama is seeking to become the first state to execute a prisoner by making him breathe pure nitrogen. The Alabama attorney general’s office on Friday asked the state Supreme Court to set an execution date for death row inmate Kenneth Eugene Smith, 58. The court filing indicated Alabama plans to put him to death by nitrogen hypoxia, an execution method that is authorized in three states but has never been used. Nitrogen hypoxia is caused by forcing the inmate to breathe only nitrogen, depriving them of oxygen and causing them to die. Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. While proponents of the new method have theorized it would be painless, opponents have likened it to human experimentation. Alabama authorized nitrogen hypoxia in 2018 amid a shortage of drugs used to carry out lethal injections, but the state has not attempted to use it until now to carry out a death sentence. Oklahoma and Mississippi have also authorized nitrogen hypoxia but have not used it. The disclosure that Alabama is ready to use nitrogen hypoxia is expected to set off a new round of legal battles over the constitutionality of the method. The Equal Justice Initiative, a legal advocacy group that has worked on death penalty issues, said Alabama has a history of “failed and flawed executions and execution attempts” and “experimenting with a never before used method is a terrible idea.” “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, said. Alabama attempted to execute Smith by lethal injection last year, but called off the execution because of problems inserting an IV into his veins. It was the state’s second such instance within two months of being unable to put an inmate to death and its third since 2018. The day after Smith’s aborted execution, Gov. Kay Ivey announced a pause on executions to conduct an internal review of lethal injection procedures. The state resumed lethal injections last month. Smith was one of two men convicted in the 1988 murder-for-hire slaying of a preacher’s wife. The Alabama attorney general argued it is time to carry out the death sentence. “It is a travesty that Kenneth Smith has been able to avoid his death sentence for nearly 35 years after being convicted of the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” Attorney General Steve Marshall said Friday in a statement. Alabama has been working for several years to develop the nitrogen hypoxia execution method but has disclosed little about its plans. The attorney general’s court filing did not describe the details of how the execution would be carried out. Corrections Commissioner John Hamm told reporters last month that a protocol was nearly complete. A number of Alabama inmates seeking to block their executions by lethal injection, including Smith, have argued they should be allowed to die by nitrogen hypoxia. Robert Grass, an attorney representing Smith, declined to comment Friday. Sennett was found dead on March 18, 1988, in the home she shared with her husband on Coon Dog Cemetery Road in Alabama’s Colbert County. Prosecutors said Smith was one of two men who were each paid $1,000 to kill Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance. The slaying, and the revelations over who was behind it, rocked the small north Alabama community. The other man convicted in the killing was executed in 2010. Charles Sennett, the victim’s husband and a Church of Christ pastor, killed himself when the investigation began to focus on him as a possible suspect, according to court documents. Republished with the permission of The Associated Press.
Alabama to carry out first lethal injection after review of execution procedures
Alabama plans to execute an inmate on Thursday for the 2001 beating death of a woman as the state seeks to carry out its first lethal injection after a pause in executions following a string of problems with inserting the IVs. James Barber, 64, is scheduled to be put to death Thursday evening at a South Alabama prison. It is the first execution scheduled in the state since Alabama Gov. Kay Ivey paused executions in November to conduct an internal review. Ivey ordered the review after two lethal injections were called off because of difficulties inserting IVs into the condemned men’s veins. Attorneys for inmate Alan Miller said prison staff poked him with needles for over an hour as they unsuccessfully tried to connect an IV line to him and, at one point, left him hanging vertically on a gurney during his aborted execution in September. State officials called off the November execution of Kenneth Eugene Smith after they said they were unsuccessful in connecting the second of two required lines. Advocacy groups claimed a third execution, carried out in July after a delay because of IV problems, was botched because of multiple attempts to connect the line, a claim the state has disputed. “Given Alabama’s recent history of botched executions, it is staggering that James Barber’s lethal injection is set to take place,” Maya Foa, director of the anti-death penalty group Reprieve, said. “Three executions in a row went horribly wrong in Alabama last year, yet officials have asserted that ‘no deficiencies’ were found in their execution process.” Barber was convicted in the 2001 beating death of 75-year-old Dorothy Epps in Harvest, Ala. Prosecutors said Barber, a handyman who knew Epps’ daughter, confessed to killing Epps with a claw hammer and fleeing with her purse. Jurors voted 11-1 to recommend a death sentence, which a judge imposed. Barber’s execution was scheduled for the same day that Oklahoma executed Jemaine Cannon for stabbing a Tulsa woman to death with a butcher knife in 1995 after his escape from a prison work center. Attorneys for Barber have asked federal courts to block the lethal injection, citing the state’s past problems. The 11th U.S. Circuit Court of Appeals refused to halt the execution on Wednesday. Judges noted the state had conducted a review of procedures and wrote that “Barber’s claim that the same pattern would continue to occur” is “purely speculative.” The court noted that the Alabama Department of Corrections had changed medical personnel and lengthened the timeframe for executions. “ADOC conducted a full review of its execution processes and procedures, determined that no deficiencies existed with the protocol itself, and instituted certain changes to help ensure successful constitutional executions,” the court wrote. Barber appealed to the U.S. Supreme Court on Thursday, asking justices to stay the execution. His lawyers wrote that the “fourth lethal injection execution that will likely be botched in the same manner as the prior three.” “Alabama’s past three execution proceedings imposed needless physical and emotional suffering on inmates to such an extent that Alabama paused its lethal injection executions and undertook an internal review of its procedures,” Barber’s lawyers wrote in the Supreme Court filing. “Shockingly, however, that review resulted in no substantive changes to Alabama’s procedures or to the qualifications of those carrying out lethal injection executions.” The Alabama attorney general’s office has urged the Supreme Court to let the execution proceed. The state wrote that the previous executions were called off because of a “confluence of events—including health issues specific to the individual inmates and last-minute litigation brought by the inmates that dramatically shortened the window for ADOC officials to conduct the executions.” “Dorothy Epps, Smith’s victim, has survivors who have already waited overlong to see justice done,” the office added. The state conducted an internal review of procedures. Ivey rebuffed requests from several groups, including a group of faith leaders, to follow the example of Tennessee Gov. Bill Lee and authorize an independent review of the state’s execution procedures. One of the changes Alabama made following the internal review was to give the state more time to carry out the execution. The Alabama Supreme Court did away with its customary midnight deadline to get an execution underway in order to give the state more time to establish an IV line and battle last-minute legal appeals. The state will have until 6 a.m. Friday to start Barber’s execution. Republished with the permission of The Associated Press.
U.S. Supreme Court sides with Alabama inmate who seeks to die by nitrogen hypoxia
The U.S. Supreme Court on Monday sided with an Alabama death row inmate, who had his lethal injection called off at the last minute in November, and argues he should be put to death by nitrogen hypoxia when he is ultimately executed. Justices, without comment, rejected the Alabama attorney general’s request to review an 11th U.S. Circuit Court of Appeals decision regarding inmate Kenneth Eugene Smith. The state argued the decision disregarded Supreme Court precedent that an inmate challenging an execution method must show that an alternative method is readily available, not just feasible. Alabama has authorized nitrogen hypoxia — death as a result of breathing pure nitrogen — as an execution method, but no state has attempted to use the untested method to put an inmate to death. Smith was scheduled to be put to death by lethal injection on Nov. 17, 2022, for the 1988 murder-for-hire slaying of a preacher’s wife. On the day of the execution, a divided 11th Circuit panel stayed the execution after Smith raised concerns about previous lethal injections in the state and suggested nitrogen hypoxia as an available alternative method. The Supreme Court disagreed and lifted the stay. However, prison officials ended up calling off Smith’s execution for the night after staff were unable to find a suitable vein to connect the second of two intravenous lines to Smith’s body. Justices Clarence Thomas and Samuel Alito dissented from the Supreme Court’s opinion, saying they would hear the case. “The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction,” Thomas wrote in a dissent. Alabama Gov. Kay Ivey in November announced a pause in executions to conduct an internal review of procedures. The review came after problems with intravenous lines caused multiple executions to be canceled or delayed. The state is seeking to resume executions this summer. Attorneys for Smith have claimed his November execution attempt was botched. Smith has an ongoing lawsuit seeking to prevent the state from making a second attempt to execute him by lethal injection. “To subject Mr. Smith to a second execution by lethal injection would subject him to a torturous experience of unnecessary physical and psychological pain, as has been established through Alabama’s last three execution attempts,” Smith’s lawyers wrote in a December court filing. Prosecutors said Smith was one of two men who were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance. The slaying, and the revelations over who was behind it, rocked the small north Alabama community. Republished with the permission of The Associated Press.
Gov. Kay Ivey says state will resume executions
Alabama Gov. Kay Ivey said Friday that the state is ready to resume executions and “obtain justice” for victims’ families after lethal injections were paused for three months for an internal review of the state’s death penalty procedures. The governor in November directed the state prison system to undertake a “top-to-bottom” review of death penalty procedures after the state was forced to cancel three lethal injections because of problems with intravenous lines. Alabama Corrections Commissioner John Hamm told Ivey in a letter shared with news outlets that his staff is ready to resume executions after making internal changes related to staffing and equipment. However, critics argued that the review should have been conducted by an outside group instead of the state agency “responsible for botching multiple executions.” The governor’s office did not release a detailed report on the review’s findings but shared the letter from the head of the prison system. Hamm said the prison system is adding to its pool of medical professionals, ordered new equipment, and has conducted rehearsals. He also noted changes that will give the execution team more time to complete its duties. The Alabama Supreme Court, at Ivey’s request, last month issued a ruling that gives the state more time to carry out a death sentence by allowing the warrants that authorize executions to last for longer than 24 hours. In a Friday letter to Alabama Attorney General Steve Marshall, Ivey wrote that it is “time to resume our duty in carrying out lawful death sentences.” Ivey had asked Marshall to stop seeking execution dates until the review was complete. “Far too many Alabama families have waited for far too long — often for decades — to obtain justice for the loss of a loved one and to obtain closure for themselves,” Ivey said in the letter, which was also released publicly. “This brief pause in executions was necessary to make sure that we can successfully deliver that justice and that closure.” Marshall on Friday filed a motion with the Alabama Supreme Court seeking an execution date for James Barber, who was sentenced to death for the 2001 beating death of 75-year-old Dorothy Epps. Marshall said his office would be “seeking death warrants for other murderers in short order.” “In Alabama, we recognize that there are crimes so heinous, atrocious, and cruel … that the only just punishment is death,” Marshall said. Ivey rebuffed requests from a group of faith leaders and advocates to follow the example of Tennessee Gov. Bill Lee and authorize an independent review of the state’s execution procedures. Dozens of attorneys sent a letter to Ivey this week seeking an independent review instead of the internal one she authorized. “Throughout this process, we have argued that it is unreasonable to believe that the agency responsible for botching multiple executions can thoroughly investigate itself and suggest remedies to correct its own behavior,” JaTaune Bosby Gilchrist, executive director of the ACLU of Alabama, said in a statement. Christine Freeman, executive director of the Middle District of Alabama Federal Defender Program, a nonprofit that represents people on death row, said the result of Ivey’s review is “disappointing, but sadly not surprising.” “Instead of acting in the measured manner of the governor of Tennessee, by operating in the open with an independent commission, Alabama has once again chosen to pretend that there are no problems and not disclose what ‘review’ actually occurred,” Freeman wrote in an emailed statement. Ivey announced a pause on executions in November after a third lethal injection failed. Executioners were unable to get an intravenous line connected to death row inmate Kenneth Eugene Smith within the 100-minute window between the time courts cleared the way and midnight when the death warrant expired. It was the third such instance of the state calling off an execution because of IV line difficulties. The state completed an execution in July after problems establishing an IV line, but an anti-death penalty group has claimed the execution was botched. Hamm said the Department of Corrections reviewed its training for staff and medical workers involved in executions and its legal strategy in litigation; and increased the number of medical personnel utilized by the department for executions and the equipment available to assist them. He said the department also conducted rehearsals and reviewed procedures in other states. Hamm said the vetting process for the new medical personnel will begin immediately. His letter did not elaborate on what duties those workers will perform or what additional equipment was ordered. “I am confident that the Department is prepared as possible to resume carrying out executions consistent with the mandates of the Constitution,” Hamm wrote. “This is true in spite of the fact that death row inmates will continue seeking to evade their lawfully imposed death sentences.” The Alabama Department of Corrections did not immediately respond to an email requesting more information. The independent Tennessee review found the state had not complied with its own lethal injection process ever since it was revised in 2018, resulting in several executions that were conducted without proper testing of the drugs used. A review was also conducted in Oklahoma after the 2014 execution of Clayton Lockett where Lockett struggled on a gurney for 43 minutes before he was declared dead. The review was conducted by a separate state agency from the prison system. Republished with the permission of The Associated Press.
Faith leaders urge independent review of Alabama executions
More than 170 pastors and other faith leaders on Tuesday urged Alabama Gov. Kay Ivey to authorize an independent review of execution procedures, as Oklahoma and Tennessee did after a series of failed lethal injections in those states. The group applauded Ivey for taking the “bold and necessary step” of ordering a review of Alabama execution procedures following problems locating intravenous lines during three lethal injections but said that review should be done by those outside the state prison system. Ivey, in November, ordered the Alabama Department of Corrections, which carries out executions, to undertake the review. “Given the gravity of what has transpired, we respectfully request a comprehensive, independent, and external review of Alabama’s death penalty procedures,” they wrote in a letter delivered to Ivey’s Alabama Capitol Office on Tuesday. The faith leaders said the review should be conducted openly — and by a person or group other than the Alabama Department of Corrections. “The fact of the matter is that an agency that has failed repeatedly to get its own house in order cannot be trusted to privately conduct an investigation into problems it is causing,” they wrote. The group cited the example of Tennessee Gov. Bill Lee, who authorized a state review after acknowledging that the state failed to ensure its lethal injection drugs were properly tested. A former U.S. attorney conducted the review. It found Tennessee had not complied with its own lethal injection process ever since it was revised in 2018, resulting in several executions that were conducted without proper testing of the drugs used. A review was also conducted in Oklahoma after the 2014 execution of Clayton Lockett. After the first drug was administered, Lockett struggled on a gurney for 43 minutes before he was declared dead. The review was conducted by a separate state agency from the prison system. It was later learned that members of the execution team had improperly inserted an IV into a vein in Lockett’s groin. The independent Oklahoma Death Penalty Review Commission also scrutinized state procedures. Ivey cited concerns for the victims and their families in ordering the review in Alabama. “For the sake of the victims and their families, we’ve got to get this right,” Ivey said. Carrying out an execution is the state’s responsibility to uphold the law and to ensure justice, Ivey spokesperson Gina Maiola wrote in a statement. “This is a responsibility Governor Ivey takes very seriously, and as she has made very clear along the way, this will review remain transparent as is appropriate while also protecting sensitive information,” she continued. The Alabama review has so far yielded changes to make it easier to carry out death sentences. At Ivey’s request, the Alabama Supreme Court gave the state a longer amount of time to carry out executions by allowing death warrants authorizing an execution to last for more than 24 hours. Ivey announced the pause on executions after a third failed lethal injection in the state. The state called off the November execution of Kenneth Eugene Smith after failing to get an intravenous line connected within the 100-minute window between when courts cleared the way for it to begin and the death warrant’s midnight deadline expired. In September, the state called off the scheduled execution of Alan Miller because of difficulty accessing his veins. Alabama, in 2018 called off the execution of Doyle Hamm because of problems getting the intravenous line connected. Hamm had damaged veins because of lymphoma, hepatitis, and past drug use, his lawyer said. The state completed an execution in July, but only after a three-hour delay caused at least partly by the same problem with starting an IV line. Republished with the permission of The Associated Press.
Steve Marshall: Kenneth Eugene Smith didn’t suffer in aborted lethal injection
Arguing against a lawsuit, Alabama’s attorney general contended that an inmate did not suffer unconstitutionally during a lethal injection that was called off last year when the execution team couldn’t establish an intravenous line despite repeated attempts. Alabama Attorney General Steve Marshall’s office asked a judge to dismiss the lawsuit filed by Kenneth Eugene Smith seeking to prevent the state from making a second attempt to put him to death. The attorney general argued that repeatedly being pricked with a needle does not rise to the level of cruel and unusual punishment and that Smith did not suffer unconstitutional pain and mental anguish during the attempted execution. “Allegations of pain related to difficulty achieving intravenous access do not amount to cruel and unusual punishment,” lawyers for the state wrote in the Monday court filing. Smith was scheduled to be put to death by lethal injection on November 17 for the 1988 murder-for-hire slaying of Elizabeth Dorlene Sennett. Prison officials called off Smith’s execution for the night after they were unable to establish IV access. The failed execution was the second instance that year of Alabama being unable to carry out an execution because of difficulties connecting intravenous access and its third since 2018. The problems led to Alabama Gov. Kay Ivey seeking a pause in executions to conduct a “top-to-bottom” review of the state’s capital punishment system. The Alabama Supreme Court, at Ivey’s request, abolished the previous one-day timeframe to carry out a death sentence. Instead, the governor will set a window of time for the execution to be carried out. The prison system had blamed last-minute legal filings — combined with a midnight deadline to get the execution started — as a reason for calling off Smith’s execution. Smith’s lawyers argued in the court filing that Smith was “subjected to ever-escalating levels of pain and torture” on the night of the “botched” execution. They argued prison staff strapped Smith to a death chamber gurney, despite a court order in place at the time blocking the execution from going forward, and later subjected him to numerous needle jabs, including in the neck and collarbone region. Republished with the permission of The Associated Press.
Gov. Kay Ivey seeks more time to carry out executions
Alabama Gov. Kay Ivey on Monday said she wants to give the state additional time to carry out an execution after a series of failed lethal injections. The Republican governor sent a letter to the Alabama Supreme Court asking justices to alter a longstanding rule that limits execution warrants to a single date. It is the first change requested by Ivey after announcing a “top-to-bottom” review of execution procedures. The review is ongoing, Ivey spokeswoman Gina Maiola said Monday. Alabama prison officials called off two recent scheduled lethal injections — for Kenneth Eugene Smith in November and Alan Miller in September — as midnight approached after last-minute legal appeals and difficulties by the execution team in connecting an IV line to each inmate. Under Ivey’s proposal, the state corrections commissioner could immediately designate a new execution date if a last-minute stay or some other delay prevents the state from carrying out an execution on the original date listed on the death warrant. Currently, if the state can’t get the procedure underway by midnight, officials must ask the Alabama Supreme Court to set a new execution date. The governor said other states do not have the strict one-day time frame. “In several recent executions, last-minute gamesmanship by death row inmates and their lawyers has consumed a lot of valuable time, preventing the department from carrying out its execution protocol between the conclusion of all legal challenges in the federal courts and the expiration at the death warrant issued by your court,” Ivey wrote. While Ivey placed the blame on the single-day time frame and last-minute appeals, lawyers for inmates and advocacy groups have said the repeated difficulties with establishing an IV line shows something is wrong with Alabama’s procedures. In a court filing opposing the setting of a new execution date for Smith, his lawyers wrote that his treatment “does not fall within society’s standards for a constitutional execution. The botched execution was terrifying and extremely painful for Mr. Smith.” Ivey last month requested a pause in executions after the state called off Smith’s lethal injection. It was the second time this year and the third time since 2018 that the state was unable to put an inmate to death. The state completed an execution in July, but only after a three-hour delay caused at least partly by trouble starting an IV line on Joe Nathan James Jr. Ivey said the state is also looking at moving up the current 6 p.m. start time for executions to give the Department of Corrections more time. Corrections Commissioner John Hamm will make a recommendation to her for a new time, she told justices. Republished with the permission of The Associated Press.
‘Execution survivor’ Alan Miller reaches settlement with state
Alabama won’t seek another lethal injection date for an inmate whose September execution had been halted because of problems establishing an intravenous line, according to the terms of a settlement agreement approved on Monday. The state agreed to never use lethal injection again as an execution method to put Alan Eugene Miller to death. Any future effort to execute him will be done by nitrogen hypoxia, an execution method authorized in Alabama but that has never been used to carry out a death sentence in the US. There is currently no protocol in place for using nitrogen hypoxia. On Tuesday, U.S. District Judge R. Austin Huffaker Jr. approved the settlement agreement in a lawsuit brought by Miller seeking to prevent another lethal injection attempt. Miller had argued that the state lost paperwork stating he picked nitrogen hypoxia as his execution method and then subjected him to torture during the failed execution attempt. At the time, Miller’s attorneys called him the “only living execution survivor in the United States.” Miller was scheduled to be executed by lethal injection on September 22, but the state called off the execution after being unable to connect an IV line to the 351-pound inmate. Miller said that when prison staff tried to find a vein, they poked him with needles for over an hour and, at one point, left him hanging vertically as he lay strapped to a gurney. Alabama has acknowledged problems with IV access during at least four executions since 2018. Three of those had to be halted. Earlier this month, the execution of Kenneth Eugene Smith was halted after the execution team tried for an hour to connect an IV line. Last week, attorneys for Smith filed a lawsuit against the prison system, saying that the state violated the U.S. Constitution, various court orders, and its own lethal injection protocol during the botched execution attempt earlier this month. Smith’s attorneys are asking a federal judge to forbid the state from making a second attempt to execute him, saying Smith was already “subjected to ever-escalating levels of pain and torture” on the night of the failed execution. Alabama also called off the 2018 execution of Doyle Lee Hamm for the same reasons. He reached an agreement with the state that prevented further execution attempts, although he remained on death row. He later died of natural causes. Prison officials blamed time constraints, specifically the midnight deadline, for the three halted executions. The state’s July execution of Joe Nathan James was carried out, but only after a three-hour delay caused at least partly by the same problem with accessing an IV line. Last week Alabama Gov. Kay Ivey announced a pause on executions in order to review the procedures. The Republican governor cited concern for victims’ families. Miller was sentenced to death after being convicted of a 1999 workplace rampage in which he killed Terry Jarvis, Lee Holdbrooks, and Scott Yancy. The settlement agreement likely prevents another execution attempt in the near future since Alabama has not announced procedures for using nitrogen hypoxia, and there will be litigation over the humaneness of the method before a state tries to use it. Republished with the permission of The Associated Press.
Attorneys: ‘Botched’ execution caused pain and torture
Alabama prison staff strapped an inmate to a death chamber gurney, despite a court order in place at the time blocking the execution from going forward, and later subjected him to numerous needle jabs, including in the neck and collarbone region while an official held his head, attorneys wrote in a court filing. Attorneys for Kenneth Eugene Smith claimed the state violated the U.S. Constitution, various court orders, and its own lethal injection protocol during the “botched” execution attempt earlier this month. Smith’s attorneys are asking a federal judge to forbid the state from making a second attempt to execute him, saying Smith was already “subjected to ever-escalating levels of pain and torture” on the night of the failed execution. “Defendants’ treatment of Mr. Smith does not fall within society’s standards for a constitutional execution. The botched execution was terrifying and extremely painful for Mr. Smith,” attorneys for Smith wrote in the complaint filed in federal court. The lawsuit accuses the state of violating the constitutional ban on cruel and unusual punishment, seeks monetary damages, and asks for an injunction to block Alabama from “making a second attempt to execute Mr. Smith.” The Alabama Department of Corrections did not immediately respond to an email seeking comment. Alabama Gov. Kay Ivey last week announced a temporary pause in executions to review the state’s capital punishment system, citing concerns for victims’ families that death sentences were delayed. “For the sake of the victims and their families, we’ve got to get this right,” Ivey said. Smith was scheduled to be put to death by lethal injection on November 17 for the 1988 murder-for-hire slaying of Elizabeth Dorlene Sennett. Prison officials said they called off Smith’s execution for the night after they were unable to establish IV access within the 100-minute window between the court clearing the way for it to begin and a midnight deadline. Smith’s attorneys say the state strapped Smith to the death chamber gurney at about 8 p.m. and left him there even though the 11th U.S. Circuit Court of Appeals issued a stay at 7:59 p.m. Smith was not told of the stay and had no way to communicate with his attorney or family as he lay strapped to the gurney, his attorneys said. “The execution continued on in defiance of the Eleventh Circuit’s stay, with Mr. Smith remaining strapped to a gurney until nearly midnight,” attorneys wrote. The U.S. Supreme Court lifted the stay shortly at 10:20 p.m., and it was around that time that the execution team began trying to establish IV access, according to the court filing. Smith was jabbed with needles multiple times in his arms, hands, neck, and collarbone region “well past the point at which the executioners should have known that it was not reasonably possible to access a vein,” his attorneys wrote. Smith’s attorneys wrote that the team tilted Smith in “an inverse crucifixion position” while strapped to the gurney and left him there for several minutes. Attorneys said they also believe the team injected Smith with “some sort of sedative and/or anesthetic”— violating assurances to a federal judge in court proceedings that they do not use intramuscular injections. Attorneys said the prison team then used a large gauge needle to try to establish a line through a blood vessel beneath the collarbone. When Smith did not comply with a request to turn his head, a deputy warden held “Smith’s head in both his hands, torqued it to the side, saying, ‘Kenny, this is for your own good.’” After multiple attempts, the execution team left the chamber, and Smith and his attorneys later learned sometime before midnight that the execution had been called off for the night. It was the state’s second such instance of being unable to kill an inmate in the past two months and its third since 2018. The state completed an execution in July, but only after a three-hour delay caused at least partly by the same problem with starting an IV line. The Alabama Department of Corrections has disputed that the cancellation of Smith’s execution was a reflection of problems. The department blamed the late-running court action, saying, “ADOC had a short timeframe to complete its protocol.” Republished with the permission of The Associated Press.
Alabama fails to complete lethal injection for 3rd time
Alabama’s string of troubled lethal injections, which worsened late Thursday as prison workers aborted another execution because of a problem with intravenous lines, is unprecedented nationally, a group that tracks capital punishment said Friday. The uncompleted execution of Kenneth Eugene Smith was the state’s second such instance of being unable to kill an inmate in the past two months and its third since 2018. The state completed an execution in July, but only after a three-hour delay caused at least partly by the same problem with starting an IV line. A leader at the Death Penalty Information Center, an anti-death penalty group with a large database on executions, said no state other than Alabama has had to halt an execution in progress since 2017, when Ohio halted Alva Campbell’s lethal injection because workers couldn’t find a vein. According to Ngozi Ndulue, deputy director of the Washington-based group, the only other lethal injection stopped before an inmate died also was in Ohio in 2009. “So Alabama has more aborted lethal injections in the past few years than the rest of the country has overall,” she said. Something has obviously gone wrong with the state’s execution procedure, Ndulue said. “I think Alabama clearly has some explaining to do, but also some reflection to do about what is going wrong in its execution process,” she said. “The question is whether Alabama is going to take that seriously.” The Alabama Department of Corrections disputed that the cancellation was a reflection of problems. In a statement, it blamed the late-running court action for the cancellation because prison officials “had a short timeframe to complete its protocol.” Prison officials said they called off Smith’s execution for the night after they were unable to get the lethal injection underway within the 100-minute window between the courts clearing the way for it to begin and a midnight deadline when the death warrant expired for the day. The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m., it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening. “We have no concerns about the state’s ability to carry out future lethal injection procedures,” the Alabama Department of Corrections said in an emailed statement. “The department will continue to review its processes, as it routinely does following each execution, to identify areas of improvement.” Alabama Gov. Kay Ivey also blamed Smith’s last-minute appeals as the reason “justice could not be carried out” U.S District Judge R. Austin Huffaker Jr. on Friday granted a request from Smith’s lawyers to visit with Smith and take photographs of his body. He also ordered the state to preserve notes and other materials related to what happened in the failed execution. Smith’s attorneys said they believe he may have been strapped to a gurney for four hours even though his final appeals were still underway. “Mr. Smith no doubt has injuries from the attempted execution — and certainly physical and testimonial evidence that needs to be preserved — that can and should be photographed and/or filmed,” lawyers for Smith wrote. Smith, who was scheduled to be put to death for the murder-for-hire slaying of a preacher’s wife in 1988, was returned to death row at Holman Prison after surviving the attempt, a prison official said. His lawyers declined to comment Friday morning. Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Smith, 57. Hamm said they established one line but were unsuccessful with a second line, which is required under the state’s protocol as a backup, after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein. “We were not able to have time to complete that, so we called off the execution,” Hamm said. The initial postponement came after Smith’s final appeals focused on problems with IV lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Advocacy groups and defense lawyers said Alabama’s continued problems show a need for a moratorium to investigate how the death penalty is carried out in the state. “Once again, the state of Alabama has shown that it is not capable of carrying out the present execution protocol without torture,” federal defender John Palombi, who has represented many death row inmates in the state, said via email Prosecutors said Smith was one of two men who were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect the insurance. The slaying — and the revelations of who was behind it — rocked the small north Alabama community where it happened in Colbert County and inspired a song called “The Fireplace Poker,” by the Southern rock group Drive-By Truckers. John Forrest Parker, the other man convicted in the slaying, was executed in 2010. Alabama has faced scrutiny over its problems at recent lethal injections. In ongoing litigation, lawyers for inmates are seeking information about the qualifications of the execution team members responsible for connecting the lines. In a Thursday hearing in Smith’s case, a federal judge asked the state how long was too long to try to establish a line, noting at least one state gives an hour limit. The execution of Joe Nathan James Jr. in July took several hours to get underway because of problems establishing an IV line, leading Reprieve US Forensic Justice Initiative, an anti-death penalty group, to claim the execution was botched. In September, the state called off the scheduled execution of Alan Miller because of difficulty accessing his veins. Miller said in a court filing that prison staff poked him with needles for more than an hour, and at one point, left him hanging vertically on a gurney before announcing they were
