He Survived A Botched Execution. Now They Plan To Kill Him In An Unprecedented Way. (2024)

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He Survived A Botched Execution. Now They Plan To Kill Him In An Unprecedented Way. (1)

In 1996, a jury recommended 11-1 that Kenneth Smith be sentenced to life without the possibility of parole for his role in a murder-for-hire plot. The judge overruled the jury and imposed a death sentence, a practice that is no longer legal. Now, nearly three decades later, the state of Alabama plans to use Smith as a test subject for a new execution method: death by inhaling nitrogen gas.

The state’s decision to execute Smith by nitrogen hypoxia on Thursday — forcing him to breathe only nitrogen through a mask while depriving him of oxygen — comes after a failed attempt to kill him by lethal injection in November 2022. Although Alabama is one of three states that has authorized executions using nitrogen gas, no state or the federal government has actually carried out such an execution.

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Alabama switched its planned killing method in Smith’s case after he fought in court to block the state from attempting to kill him again through lethal injection. In addition to Smith, Alabama has failed to kill two other people it tried to execute with lethal injection in recent years. In a fourth lethal injection execution, the killing took more than three hours. Even in lethal injection executions with no observable problems, autopsies of the deceased show signs of pulmonary edema, a condition where the lungs fill with fluid and create the painful sensation of suffocating or drowning.

Despite the clear problems with lethal injection executions, there is no evidence that executions using nitrogen would be any more humane. A botched nitrogen execution could lead to a slow, painful death by asphyxiation — or even leave the individual alive but in a persistent vegetative state, according to medical experts. Alabama’s plan to supply nitrogen through a mask worn by Smith also poses a risk to others in the execution chamber, including Smith’s spiritual adviser, Rev. Jeff Hood.

“This is the most inept, unqualified, unprofessional execution squad in the country. And they think they’re going to be the ones to do this nitrogen hypoxia without a hitch?” Hood said in an interview. “Kenny is facing a torture of uncertainty throughout all of this. I think it is as cruel and unusual as any punishment in human history.”

Smith, who along with his lawyers did not respond to a request for comment, previously told NPR that he is “terrified” by the prospect of being killed with nitrogen gas.

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“I’ve been doing time for 35 years now, and I’ve tried to place myself in my brothers’ shoes when they’re around the corner and going through this. But nothing prepares you for it,” Smith said. “The anxiety and stuff starts building up before you ever get your date. And now that you’re approaching that time, the anxiety starts to build. And, yeah, there is a mental trauma there that I never realized until I went through that.”

He Survived A Botched Execution. Now They Plan To Kill Him In An Unprecedented Way. (2)

Alabama Department of Corrections

Had Smith’s trial taken place today, he would not have received a death sentence. In 2017, Alabama became the last state to ban judges from overriding jury recommendations to impose death sentences. However, like many criminal justice reforms, the change was not applied retroactively and Smith remained on death row.

Alabama authorized nitrogen hypoxia as a method of execution in 2018, amid a shortage of lethal injection drugs and a lawsuit by people on death row challenging the constitutionality of the state’s lethal injection procedure.

Weeks before Gov. Kay Ivey (R) signed the legislation allowing nitrogen gas executions, the state unsuccessfully attempted to execute a terminally ill man named Doyle Lee Hamm, whose veins had deteriorated from drug use and treatment for cancer and hepatitis C. Executioners punctured him at least 11 times in his legs, ankles and groin, only stopping when the death warrant was close to expiring. Hamm experienced extensive bruising, a large amount of blood loss near his groin, and later reported blood in his urine. The state agreed not to try to execute him again and he died in 2021.

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But Alabama continued botching lethal injection executions. In July 2022, the state took more than three hours to kill Joe Nathan James Jr., making it the longest lethal injection execution in the U.S. Although Alabama Department of Corrections Commissioner John Hamm said “nothing out of the ordinary” had occurred, the autopsy suggested otherwise. Failed attempts to insert IV catheters left puncture wounds and bruising on James’ hands, wrists and arms, in addition to unexplained incisions.

The autopsy indicated that the people responsible for inserting the IV were “unqualified for the task in the most dramatic way,” Joel Zivot, an associate professor of anesthesiology who advocates against using tools of medicine for the death penalty, told The Atlantic. (The American Medical Association states in its code of medical ethics that as members of a profession dedicated to preserving life, physicians must not participate in executions.)

Two months later, Alabama unsuccessfully tried to execute Alan Eugene Miller. Again, execution officials failed to set IV lines after repeatedly puncturing him with needles for approximately 90 minutes. By the end of the night, Miller “was suspended vertically from a cross-shaped table, hands and one foot bleeding in an execution chamber and the state of Alabama apparently realizing it wouldn’t be able to kill him within the time it had,” journalist Elizabeth Bruenig, who observed Miller’s execution, wrote in the Atlantic.

Smith was aware of these botched executions as his first execution date approached. There was no indication that Alabama’s prison system had paused to investigate its failures in the cases of Hamm, James and Miller before leading Smith into the execution chamber on Nov. 17, 2022. There, he lay strapped to the gurney, unable to move for nearly four hours. Unbeknownst to him, a federal appellate court had stayed his execution. Rather than release him from the gurney, prison officials left him there until the Supreme Court vacated the stay.

Once Smith’s appeals were exhausted, the jabbing began. First, execution officials tried to set two IV lines, sliding a needle in and out of his arms and hands, ignoring him as he said they were penetrating his muscles and causing him severe pain, his lawyers wrote in a complaint filed in federal court in November. When that failed, the IV team tilted the gurney backward until Smith was in a “reverse crucifixion position with his head below his feet,” the complaint stated. A member of the IV team made five or six jabs with a clear syringe in his collarbone area before inserting a large-gauge needle into his collarbone and jabbing him several more times. It was so painful that Smith constricted against the gurney restraints, injuring his shoulder. He struggled to breathe.

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“They were just sticking me over and over, going in the same hole like a freaking sewing machine,” Smith told NPR. “I was absolutely alone in a room full of people, and not one of them tried to help me at all — and I was crying out for help.”

When the execution team finally called off the killing shortly before midnight, Smith was unable to stand, walk or dress himself without assistance, the complaint said. He still experiences severe post-traumatic stress disorder symptoms, including nightmares, hypervigilance, hyperarousal and dissociation.

Smith and Miller are the only two people alive who have survived an execution procedure in the country.

“They were just sticking me over and over, going in the same hole like a freaking sewing machine.”

- Kenneth Smith

Ahead of his first execution date, Smith sued the Alabama Department of Corrections Commissioner, alleging that the state’s lethal injection protocol violated Eighth Amendment protections against cruel and unusual punishment. The Supreme Court has previously held that prisoners challenging the legality of an execution method must identify an alternative method that is feasible, readily implemented and reduces the risk of severe pain.

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Smith identified nitrogen hypoxia as an alternative method but the corrections department repeatedly took the position that it was not an “available” alternative. “Then, on the eve of being required to disclose information regarding its failed attempt to execute Mr. Smith by lethal injection, [Alabama Department of Corrections] suddenly changed course, now claiming it is prepared to carry out executions using nitrogen hypoxia,” Smith’s lawyers wrote in the complaint filed last November.

The corrections department filed its nitrogen hypoxia protocol last August as part of a motion to dismiss Smith’s previous lawsuit. The protocol was so heavily redacted it was “impossible to determine with specificity how the lethal gas process will proceed,” Robert Dunham, the director of the Death Penalty Policy Project, wrote at the time.

When Smith proposed nitrogen hypoxia as an alternative to lethal injection, his lawyers wrote, “he did not agree to be executed without knowing the protocol, much less by ADOC using a heavily redacted protocol that he had never seen and that was hastily introduced as a means to moot Mr. Smith’s pending litigation about ADOC’s previous failed attempt to execute him by lethal injection and forestall discovery into it.”

Based on the readable text of the nitrogen hypoxia protocol, Smith is at risk of experiencing an excruciating death — or of surviving but suffering other medical issues, his lawyers said. The use of a one-size-fits-all mask to deliver the nitrogen risks having an inadequate seal. If oxygen leaks into the mask, Smith could experience a prolonged, painful death, or even experience a stroke or a persistent vegetative state, the lawyers wrote.

The protocol does not specify the purity of the nitrogen or how it will be stored to prevent contamination, Smith’s lawyers noted. Airgas, a major gas distributor for Alabama, has previously stated it would not supply the state with gas to use in executions, echoing moves by drug manufacturers who refused to provide drugs for lethal injection executions.

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Earlier this month, U.S. District Judge R. Austin Huffaker Jr. allowed Alabama to move forward with executing Smith with nitrogen, ruling that Smith had not sufficiently proven the process was likely to cause a prolonged, painful death. Huffaker said in his ruling that Smith has been given an unredacted copy of the state’s nitrogen execution protocol.

Smith is appealing the ruling.

Huffaker’s ruling has created a situation in which the standards for euthanizing animals are more restrictive than the standards for killing healthy humans. The American Veterinary Medical Association said in its 2020 euthanasia guidelines that although nitrogen exposure may be an acceptable way to kill chickens, turkeys or pigs under certain conditions, it should not be used to kill other mammals. Rats who were exposed to high nitrogen gas levels showed signs of “panic and distress” before dying, the AVMA said.

Hood, Smith’s spiritual adviser, plans to be in the execution chamber with Smith to deliver his last rites. He was required to sign a waiver acknowledging the risk that he could inadvertently be exposed to the odorless, tasteless nitrogen gas.

Hood, who has witnessed several lethal injection executions as a spiritual adviser to people on death row, said it is important to him that the people he works with are not alone in their final moments.

“I want my guys to always know that what is happening to them is evil. It’s not right.”

He Survived A Botched Execution. Now They Plan To Kill Him In An Unprecedented Way. (2024)

FAQs

Who was the man who survived his execution? ›

Willie Francis (January 12, 1929 – May 9, 1947) was an American teenager known for surviving a failed execution by electrocution in the United States. He was a convicted juvenile sentenced to death at age 16 by the state of Louisiana in 1945 for the murder of Andrew Thomas, a pharmacy owner in St.

What happens if someone survives an execution? ›

Answer and Explanation: If someone survives the death penalty, they are usually re-executed, sometimes on the spot. Survival of the death penalty is not common, but has happened: people survive the intense shock of the electric chair or a lethal injection, requiring a second administration of the execution.

What was the longest botched execution? ›

But Reprieve's study found that more than a third of botched lethal injection executions lasted more than 45 minutes, and more than a quarter lasted for more than an hour. In 2022, a Black man in Alabama suffered the longest botched execution, more than three hours.

What does a botched execution mean? ›

By “botched,” it means those involving unanticipated problems or delays that caused at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner” (Borg & Radelet, 2004:144).

Who survived execution 3 times? ›

John Henry George "Babbacombe" Lee (15 August 1864 – 19 March 1945) was an Englishman famous for surviving three attempts to hang him for murder. Born in Abbotskerswell, Devon, Lee served in the Royal Navy, and was a known thief.

Who was the last man to be executed by hanging? ›

Delaware's Billy Bailey was the last criminal to be hanged in the United States, in 1996. Bailey was just the third criminal to be hanged since 1965, the other two being Charles Rodman Campbell in 1994 and Westley Allan Dodd in 1993, both in Washington State.

Can anyone watch an execution? ›

The only prerequisite is that they must choose their witnesses from their approved visitation list, which means the witnesses, can be anyone including immediate family, friends, and a spiritual advisor.

What is the minimum age for execution? ›

Offenders under the age of 18 are exempt from the death penalty.

Which queen had a botched execution? ›

Mary, Queen of Scots (1587) – Beheading by axe. The execution took three blows. Anne Greene (1650) – Hanging (attempted). She was found alive, in her coffin, a day after her hanging, having a faint pulse and weak breathing.

Do they shave your head before execution? ›

Process and mechanism. The condemned inmate's head and legs are shaved and they are seated in the chair. Their arms and legs are tightly strapped with leather belts, and a cap with a saltwater-soaked sponge is strapped to the head, and electrodes are attached to the legs.

What is the most painless type of execution? ›

The Alabama attorney general's office told federal appeals court judges last week that nitrogen hypoxia is “the most painless and humane method of execution known to man.” But what exactly Smith, 58, will feel after the warden switches on the gas is unknown, some doctors and critics say.

Why are most executions at midnight? ›

Scheduling the execution for 12:01 a.m. gives the state as much time as possible to deal with last-minute legal appeals and temporary stays, which have a way of eating up time. Another advantage is that the rest of the inmates are locked down and, presumably, asleep.

Who has survived the death penalty? ›

This Man Survived One Execution. Now, Alabama Will Try to Kill Him Again—With Nitrogen Gas. That's never happened before in the history of America. Kenneth Smith is slated for execution in Alabama via nitrogen hypoxia.

Who was electrocuted but survived? ›

The only known survivor of an electric chair execution was one Willie Francis. A drunken guard botched assembly of the portable electric chair, such that Willie (age 16) got serious shocks, but did not die. His case was argued up to the Supreme Court, which in a 5–4 decision agreed he should be executed again.

Has anyone survived the firing squad? ›

Wenceslao Moguel Herrera (1 November 1896 – 29 July 1976), known in the press as El Fusilado (Spanish: "The Shot One"), was a Mexican soldier under Pancho Villa who was captured on 18 March 1915 during the Mexican Revolution, and survived execution by firing squad.

Is nitrogen hypoxia execution painful? ›

His execution has caused outrage: Alabama claims nitrogen hypoxia is a quick, painless death but many medical experts disagree. Some have likened it to torture. Why did Alabama authorise this untested method? Lethal injection was used for 89 of the 92 executions carried out in America between 2019 and 2023.

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