Alabama Plans Second “Execution” of Kenny Smith by Experimental Method

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On November 17, 2022, Alabama prison officials strapped Kenny Smith to a gurney for over an hour while unnamed state corrections staff poked and prodded him in an effort to access his veins so that toxic chemicals could be injected that would kill him. The botched execution came after Mr. Smith had been told for weeks that he would die on November 17.

Shortly before midnight, Alabama officials were forced to stop the continued attempts to execute Mr. Smith when they could not complete the process, making him the second person in less than two months to survive the torture of a failed execution by the State of Alabama.

Prior to the State’s first attempt to execute him, Mr. Smith had argued that Alabama could not be trusted to reliably carry out his execution without an unacceptable risk of unnecessary torture in violation of the Eighth Amendment.

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On November 1, 2023, a divided Alabama Supreme Court granted the attorney general’s motion to set a date to execute Kenny Smith by nitrogen asphyxiation, a method that has never been used.

The order authorized the Alabama Department of Corrections to execute Mr. Smith within a time frame set by the governor, and a week later, Alabama Gov. Kay Ivey set the execution for January 25, 2024.

Alabama has been trying to figure out how to kill someone by forcing them to breathe pure nitrogen gas since lawmakers authorized the method in 2018.

Breathing pure nitrogen causes death by depriving the body of oxygen. There is no scientific evidence on using it to execute people, but nitrogen hypoxia has long been rejected as an acceptable method for euthanizing animals.

Oklahoma and Mississippi authorized execution by nitrogen gas even earlier than Alabama, but neither state has developed a protocol for using the method, which carries the risk of asphyxiating prison employees, family members, and other people in the prison by accidental exposure to the colorless, odorless gas.

Mr. Smith challenged the untested, unproven method, raising questions about the risk of harm and death to correctional staff and others involved in the execution. He argued that the State has not released the information necessary to ensure that nitrogen will not result in torturous death, writing that the State is forcing Mr. Smith to be a “test subject for this novel and experimental method.”

The federal district court denied Mr. Smith’s challenge on January 10. Mr. Smith plans to appeal.

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