Yesterday evening, Jan. 25, in a historic first for both the nation and the world, the state of Alabama executed Kenneth Eugene Smith through the novel method of nitrogen hypoxia at the William C. Holman Correctional Facility in Atmore. Attorney General Steve Marshall confirmed the execution's success in a news release and said justice had been served for the crime committed over 35 years ago – the murder-for-hire killing of Elizabeth Sennett.

Kenneth Smith, officially pronounced dead at 8:25 p.m. on Jan. 25, faced the unique execution method authorized by a 2018 law. This marked the first use of nitrogen hypoxia as an execution method, and Marshall asserted that it had proven to be both effective and humane. The Federal District Court, which had considered Smith's challenge to the method, found insufficient evidence to suggest it caused undue pain.

"Tonight, Kenneth Smith was put to death for the heinous act he committed over 35 years ago: the murder-for-hire slaying of Elizabeth Sennett, an innocent woman who was by all accounts a godly wife, a loving mother and grandmother, and a beloved pillar of her community," Marshall said in the release. "I ask the people of Alabama to join me in praying for Elizabeth’s family and friends, that they might now better be able to find long-awaited peace and closure."

The execution proceeded as scheduled, beginning at 7:56 p.m., with Smith's death officially recorded at 8:25 p.m.

SUMMARY OF THE CASE

Kenneth Smith's execution followed a crime committed in March 1988. Pastor Charles Sennett, seeking to escape financial debts and an extramarital affair, orchestrated a murder-for-hire plot to kill his wife, Elizabeth Sennett. He hired Smith and his accomplice, John Parker.

The duo used a survival knife for the attack, which left Sennett brutally beaten, stabbed 10 times and ultimately dead. Smith was convicted of capital murder in 1989 and again in 1996.

The decision to employ nitrogen hypoxia in Smith's execution was not without controversy. Alabama's adoption of this method in 2018 was in response to challenges in obtaining execution drugs. The state granted death-row prisoners the option to choose this alternative, with a 30-day opt-in period.

EXECUTION DETAILS AND CONTROVERSIES

On Jan. 25, Kenneth Smith's execution took place, becoming the first instance of nitrogen hypoxia's use in American history. Contrary to assurances of rapid unconsciousness, witnesses reported Smith's visible distress for several minutes after the gas began, leading to his death 32 minutes later.

Smith's case was marked by a history of botched execution attempts and a jury's 11-1 recommendation for a life sentence, overruled by the judge in favor of a death sentence — a practice now outlawed nationwide. The Supreme Court denied a stay of execution and certiorari review, with dissenting justices expressing concerns about the method's potential cruelty and uncharted territory.

FIRST FAILED EXECUTION

Despite the successful execution of Smith on Jan. 25, this was not the first time Smith was scheduled to be executed according to information recorded on the Death Penalty Information Center (DPIC). On Nov. 17, 2022, Alabama state prosecutors attempted his execution by lethal injection, despite a federal appeals court issuing a stay. Smith's execution team struggled to set the intravenous execution line, leaving him restrained on the gurney even after the attempt was called off — a four-hour ordeal.

Revelations from the incident, detailed in pleadings filed on Nov. 25, 2022, in the U.S. District Court for the Middle District of Alabama, were reported by The Guardian on Dec. 28, 2022.

In his Second Amended Complaint, Smith recounted the night, describing escalating pain and torture without any response to his pleas for relief. The prison officials failed to communicate the Eleventh Circuit’s stay or address his inquiries about the legal proceedings.

The timeline in Smith’s complaint revealed that despite the Eleventh Circuit's stay at 8:02 p.m., the Alabama Department of Corrections (ADOC) kept Smith restrained until midnight, leading him to believe his execution was still imminent. The execution team, disregarding the stay, attempted to set an IV line and injected Smith with an unknown substance against court orders. Unverified reports of the execution being called off around 11:20 p.m. went unanswered by the execution team, leaving Smith unaware of the halted execution until he was removed from the chamber before midnight.

The U.S. Supreme Court's reversal of Smith’s stay at 10:20 p.m. underscored a disregard for court orders and ADOC’s protocol, marking the third consecutive botched execution in Alabama. Subsequently, Gov. Kay Ivey called for a review of the state’s execution process, leading to amendments in state court rules governing death warrants approved by the Alabama Supreme Court on Jan. 12, 2023.

HOW DID NITROGEN HYPOXIA BECOME THE PREFERRED METHOD OF EXECUTION?

According to reports, condemned prisoners who are executed by lethal injection often endure agonizing pain during their final hours. On top of these reports, Alabama has a low success rate of completing an execution, with around every one in eight failing, according to the Equal Justice Initiative (EJI) website. Alabama has executed 73 people, all at the Holman Correctional Facility near Atmore, since 1976 with 72 of those being male and one being female, meaning about nine have failed. These factors among legal concerns, made Alabama abandon plans to execute death-row prisoners, including Smith, using the controversial lethal injection protocol. Instead, Alabama joined Oklahoma and Mississippi as states who choose to execute condemned by lethal gas, such as the nitrogen hypoxia method.

A Joint Motion to Dismiss the federal litigation challenging the state’s execution protocol was filed on July 10, 2018, rendering the lawsuit moot. The shift comes after Alabama passed legislation allowing execution by nitrogen gas, with prisoners choosing nitrogen hypoxia as their preferred method. Alabama's lethal injection process, utilizing the sedative midazolam, has faced criticism for its association with "botched" executions across the nation, including concerns of consciousness during the procedure. Nitrogen gas, though untested in U.S. executions, was approved as an option, and prisoners opted for it over the known risks of lethal injection.

According to information on the DPIC website, this was not the first time an execution by nitrogen hypoxia was scheduled. In September 2022, Alabama did not execute a death-row prisoner, Alan Eugene Miller, by scheduled nitrogen hypoxia due to the state being unprepared to carry out an execution by the execution method. Miller is still waiting for an execution date.

WHAT IS NITROGEN HYPOXIA?

The science of nitrogen hypoxia is fairly simple; About 78% of the air humans breathe is nitrogen gas. The chemical properties of nitrogen gas are colorless, odorless, and non-toxic. In addition to this, the element is neither flammable nor explosive and actually acts as a fire suppressant by reducing the oxygen content within a room to a point at which the fire will extinguish. Nitrogen also does not decompose or produce any by-products when exposed to a flame.

What makes nitrogen hypoxia a method of execution comes from the word hypoxia. According to the National Center for Biotechnology Information, hypoxia occurs when tissues lack sufficient oxygen at the cellular level to sustain proper homeostasis (a self-regulating process by which biological systems tend to maintain stability). The condition of hypoxia can arise from insufficient oxygen delivery to the tissues, stemming from either a diminished blood supply or reduced oxygen content in the blood, a condition known as hypoxemia.

In a nitrogen hypoxia execution, the accused wears a mask that only offers nitrogen leading to an inert gas asphyxiation, which is a form of asphyxiation that results from breathing a physiologically inert gas in the complete absence of, or low amount of, oxygen, in place of atmospheric air (which is composed largely of nitrogen and oxygen). Examples of physiologically inert gases, including those which have caused accidental or deliberate death by this mechanism, are argon, helium, methane and of course, nitrogen.

Per the U.S. Chemical Safety Board's website, despite 78% of the air comprising nitrogen gas, it is essential to recognize that nitrogen is safe to inhale only in the presence of an adequate oxygen mix. In cases where nitrogen concentration is excessively high and oxygen is insufficient, the body experiences oxygen deprivation, resulting in asphyxiation.

According to hypotheses, nitrogen hypoxia, should, in theory, not have the sensation of smothering as a person breathing pure nitrogen would still exhale carbon dioxide. There is also the belief that a person would lose consciousness before the lack of oxygen led to death and that a person would lose consciousness quickly, perhaps in only one minute. There is even some speculation that this method of execution could cause the condemned to feel dizzy, lightheaded, confused and perhaps even giddy.

However, there has not been enough information to adequately say what an execution by nitrogen hypoxia would actually be like. In 2020, the American Veterinary Medical Association (AVMA) declared in 2020 its "Guidelines for the Euthanasia of Animals" that nitrogen hypoxia was not a suitable method of euthanizing most animals. There are also questions raised on the differing grades of nitrogen as each has different purities and regulations. There are also some medical experts who believe the build up of exhaled carbon dioxide could cause feelings of suffocation. It should also be noted that according to EJI nitrogen is also not a method used for terminal patients in states where medically assisted dying is legal.

There is also concern that the execution method could endanger spiritual advisors and prison staff in the execution chamber. According to an eye witness testimony published on the Public Broadcasting Service (PBS) News Hour website, Smith exhibited seizure-like spasms and shook violently for about two minutes. Smith also took several deep, gasping breaths during the execution. It took about 10 minutes before there were no longer signs of breathing.

Still, while this execution was the first of its type to take place in the United States, there are reports of nitrogen hypoxia being used in some assisted suicides in Europe and other places. It should be noted that the precise method that Alabama used differs from common practice recorded.

JUSTICE MUST BE SERVED

“The execution was lawfully carried out by nitrogen hypoxia, the method previously requested by Mr. Smith as an alternative to lethal injection,” Ivey said in a statement.

While the jury is still out on if nitrogen hypoxia is a more humane execution method, Smith did indeed take a mother's life many years ago and according to reports, her children may have felt justice was served, but do not take any pleasure of this historical execution. The weight of both the crime and the execution hang heavy in the air.

“Alabama has achieved something historic," the news release from the Alabama Attorney General's office stated. "Like most states, Alabama has made the judgment that some crimes are so horrific that they warrant the ultimate penalty. But anti-death-penalty activists have worked to nullify that moral judgment through pressure campaigns against anyone assisting states in the process. They don’t care that Alabama’s new method is humane and effective, because they know it is also easy to carry out. Despite the international effort by activists to undermine and disparage our state's justice system and to deny justice to the victims of heinous murders, our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood. This is an important night for Liz Sennett’s family, for justice, and for the rule of law in our great nation."

The release went further to say that the law authorizing the nitrogen hypoxia execution method originally enacted in 2018, "was intended to be — and has now proved to be — an effective and humane method of execution."