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ATMORE, Ala. — An Alabama man was put to death using nitrogen gas Thursday evening during a first-of-its-kind execution that could influence states in pursuit of a viable alternative to lethal injection.
Kenneth Eugene Smith, 58, was executed by nitrogen hypoxia, in which he was strapped to a gurney and made to breathe nitrogen gas through a mask apparatus, depriving him of oxygen, prison officials at the William C. Holman Correctional Facility in Atmore said.
Nitrogen hypoxia is an untested method in the United States. About 50 minutes after it was originally scheduled to happen, the Supreme Court again on Thursday rejected a request by Smith’s lawyers to block the execution.
Smith, who was convicted for his role in a 1988 murder-for-hire slaying of a preacher’s wife, was already a rare example of a person who survived an execution. An attempt to put him to death by lethal injection in 2022 failed when prison staff at Atmore tried unsuccessfully to insert needles into a suitable vein.
That failure, among a series of problematic executions using lethal injection in the state, prompted Alabama officials to pause the practice in 2022 and reevaluate.
“It makes it even worse that I suffered so much last year,” Smith told NBC News in a phone interview from prison in December. “And I’m still dealing with that currently. So the fact that they’ve got me lined up to be the first with gas is really terrifying.”
The experience left him with post-traumatic stress disorder and bouts of vomiting, and his lawyers had said in court filings they worry he may vomit while he is in the death chamber with the mask on and choke.
As a precaution, prison officials said they gave Smith his final meal of solid food by 10 a.m. and only clear liquids throughout the day.
Smith’s spiritual adviser, the Rev. Jeff Hood, said his last meal consisted of a Waffle House order: T-bone steak, hash browns and scrambled eggs in A.1. sauce and toast.
The concern that Smith was potentially being subjected to cruel and unusual punishment in violation of the Constitution had been the basis for filings by his legal team and also led opponents of capital punishment and United Nations human rights experts to voice their concerns. But a federal appeals court on Wednesday dealt another blow, writing in a majority opinion that the fact nitrogen hypoxia is “new and novel” does not mean it is inherently cruel and unusual.
Alabama approved the use of nitrogen hypoxia for executions in 2018, given that the primary method, lethal injection, has become increasingly difficult due to a shortage of the necessary drugs.
Two other states, Oklahoma and Mississippi, have also approved the use of nitrogen hypoxia, but neither has tried it.
The appeals court noted it was Smith who initially agreed to accept nitrogen hypoxia over using lethal injection again, although it was at a time when the state’s protocol had not been developed.
Smith’s lawyers have argued that it is not the method itself that is troubling but the unknowns surrounding Alabama’s protocol, which has been heavily redacted in public filings.
His lawyers lodged another petition to the U.S. Supreme Court on Thursday to block the execution, after the high court denied his application on Wednesday without comment.
Nitrogen gas is naturally occurring, but also colorless and odorless, and if not mixed with enough oxygen can cause physical side effects such as impaired respiration and vomiting, and even death.
Medical experts had said even a small amount of oxygen getting into the mask when Smith was breathing nitrogen could prolong the time it would take for him to die and lead to slow asphyxiation.
Hood was allowed to remain in the execution room, where officials said he could give Smith his last rites before the mask was affixed to the inmate’s face. Hood said he was given an “orientation” by prison officials on Wednesday, but he still had his doubts about safety, including his own if something went awry.
“That experience made me feel worse about today, certainly not better,” Hood said before the execution. “I expected there to be some sort of, more of a plan, more of a safety plan, more precautions, and none of that was in place. None of that was reality. I’ve kept asking questions. And they kept saying, ‘Trust us, trust us.’”
Hood said he was initially required to sign a waiver agreeing to be a certain distance from Smith in the chamber for his own protection.
“I think I’m prepared to witness a horror show,” he said earlier, adding that Smith had been growing nauseous in recent days. “I can’t imagine seeing him choked to death, suffocate to death, have seizures.”
State officials have downplayed such concerns as speculative. In asking the Supreme Court on Thursday to deny Smith’s request to stay the execution, the state attorney general’s office said it believes “the new method will be swift, painless, and humane” and that “Smith will not have stomach contents of sufficient volume at the time of execution to vomit enough to choke to death.”
The high court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — dissented to the decision to deny blocking Smith’s execution.
Sotomayor wrote in her dissent that Smith was previously correct that he faced an unconstitutional risk of pain during his first execution attempt and that “I sincerely hope that he is not proven correct a second time.”
With his execution looming closer, Smith said last month that he had regrets, but was adamant the use of nitrogen gas as a new execution method would only “make more victims.”
Smith was 22 when a pastor named Charles Sennett hired him and two others for $1,000 each to kill his wife so he could collect on her life insurance, prosecutors said. Elizabeth Sennett, 45, was stabbed and beaten to death in her home. Her husband died by suicide, and one of the other men convicted in the slaying was executed in 2010.
Elizabeth Sennett’s adult sons said Thursday that after more than three decades of not having their mother, “We want closure” — no matter the method.
“He’s never apologized to us for this,” Charles Sennett Jr. said. “Not a letter, not not a word through his spiritual adviser or whoever. If he had done something like that years ago, we might have a little bit more compassion for the man.”
“As Christians,” Sennett said, “we’ve forgiven him.”
Abigail Brooks and Dasha Burns reported from Atmore, and Erik Ortiz from New York.
