First gas execution in state’s history set for late January
Published 4:34 pm Wednesday, November 8, 2023
Alabama Gov. Kay Ivey, Nov. 8, set a date for the state’s first gas execution to take place on a death row inmate.
According to a letter to the Alabama Department of Corrections John Hamm, Ivey set a 30-hour time frame for Kenneth Eugene Smith to be executed between 12 a.m. Jan. 25, 2024, to 6 a.m. Jan. 26, 2024.
If the execution proceeds, Smith will be the first person to be executed using nitrogen hypoxia, a method his attorneys said he chose after his lethal injection execution failed last year.
Smith — who was sentenced to death by a judge in 1996 after being convicted of killing a woman in a murder-for-hire scheme in 1988 — was set to be executed Nov. 17, 2022, but after Alabama Department of Corrections staff spent an hour trying to set IV lines for the lethal injection drugs, his execution was halted.
If Ivey authorizes Smith’s execution by nitrogen hypoxia, it would be the first gas execution for criminal punishment nationwide since 1999 when cyanide poison was inhaled by a death row inmate in Arizona.
While it appears ADOC has not tested the nitrogen hypoxia method previous gas executions have been described as antagonizing. ADOC has declined to comment on its protocol for gas executions.
After fighting off a second execution attempt via lethal injection, court filings as recent as August indicate that Smith’s attorneys have attempted to avoid a second execution attempt using any method due to the “psychological torture” Smith has endured from the previous botched execution.
A federal district court held that “Smith’s allegations support a plausible claim of cruel superadded pain as part of the [attempted] execution” and “it is plausible rather than merely possible, that a second lethal injection execution poses a substantial risk of severe pain to Smith,”
“This court should reach the same conclusion about Mr. Smith’s related allegations supporting his claim … that the state should be prohibited from making another attempt to execute him by any method,” Smith’s attorneys stated.
On Nov. 1, the Alabama Supreme Court authorized Smith’s execution to proceed via nitrogen hypoxia.
Ivey said while she has no plans to grant clemency in Smith’s case, the state Constitution allows her to grant reprieve or commutation, if necessary, at any time before the execution is carried out.
Death row inmate Casey McWhorter is scheduled to be executed via lethal injection by ADOC on Nov. 16. If the execution proceeds, McWhorter would be the second inmate to die by lethal injection following an eight-month protocol review due to three botched lethal injections last year.