Alabama could become the first state to execute a prisoner by forcing him to breathe in pure nitrogen, a novel method that has never been used.
Alabama Attorney General Steve Marshall's office asked the Alabama Supreme Court in a court filing on Aug. 25 to schedule the execution of Kenneth Eugene Smith, who was convicted and sentenced to death for the murder-for-hire killing of a preacher's wife in the 1980s.
"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," Mr. Marshall said in a statement.
That court filing to the state's top court also indicated that Alabama plans to execute Mr. Smith via nitrogen hypoxia, according to a news release from the attorney general's office. The method of execution is authorized in three states, including Alabama, but it's never been tried before.
While nitrogen makes up about 78 percent of the air inhaled by people and is harmless when inhaled with oxygen, the execution method will force the inmate to breathe 100 percent nitrogen. The method would deprive the death row inmate of oxygen before they would then pass out "within a minute" before dying shortly after that, some experts have said.
“Placed into a pure nitrogen environment, the convict would be unconscious within a minute (possibly even after a breath or two) and would be dead soon after,” Charles Blanke, a professor of medicine at Oregon Health & Science University School of Medicine, said in a Fox News interview. “Its failure rate, that is, cases in which the prisoner survives, would likely be much lower than what we see with current death penalty methods.”
Proponents of the execution method say that it would likely be painless. However, opponents have said it's essentially a form of experimentation on people.
“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,” the Equal Justice Initiative, a nonprofit that provides legal representation to those who may have been denied a fair trial, told the Associated Press.
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.
However, Alabama likely doesn't have to prove whether a pure nitrogen-based execution in humane, one professor said.
"The burden is on the condemned inmate to show that it is torturous rather than the burden being on the state to show that it’s not,” Richmond University law professor Corinna Barrett Lain in an interview with Scientific American. Ms. Lain said that the most humane method of execution is likely death via firing squad.
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 the how the execution would be carried out. Corrections Commissioner John Hamm told reporters last month that a protocol was nearly complete.
Meanwhile, a number of Alabama inmates seeking to block their executions by lethal injection, including Mr. Smith, have argued they should be allowed to die by nitrogen hypoxia.
According to the Alabama attorney general's office, the pastor of the Westside Church of Christ in Sheffield, Alabama, in March 1988 sought to hire a hitman to kill his wife after incurring substantial debts and having an affair with another woman. The pastor, Charles Sennett, then took a large life insurance policy on his wife, Elizabeth Sennett, before hatching a scheme to have his wife murdered.
Mr. Sennett, according to the release, then hired Mr. Smith and John Parker, a friend of Mr. Smith, to kill Mrs. Sennett and pay them $1,000 each for the killing. The release said she was "ambushed," beaten, and stabbed multiple times before her death. A week after his wife's slaying, Mr. Sennett committed suicide and was never charged.
Mr. Smith was tried for the murder in 1989 and again in 1996. He was convicted both times with capital murder, receiving the death penalty both times.
In July 2010, Mr. Parker, who was convicted and sentenced to death, was executed for Mrs. Sennett's death via lethal injection at the Holman Prison in Atmore, Alabama. The U.S. Supreme Court at the time rejected a stay minutes before the execution began.
"I'm sorry. I don't ever expect you to forgive me," Mr. Parker told the woman's family before his execution. "I really am sorry."
At the time, Charles Sennett told outlets that the execution was "one of the steps we have to take to get closure and justice,” adding that "we still have another step with Smith, but tonight was a step in the right direction.”
The Associated Press contributed to this report.
