Eleventh Circuit Won’t Force Condemned Alabama Prisoner to Die by Method He Didn’t Choose
by David M. Reutter
Once it begins a lethal injection, the Alabama Department of Corrections (DOC) “will attempt to carry out the execution and not stop until it becomes clear that they are likely to run out of time under the death warrant, and during that time, will do anything to obtain intravenous access, without regard to its own lethal injection protocol or the constitutional rights of the condemned.”
That explosive allegation was made in a lawsuit brought by death-row prisoner Kenneth Eugene Smith, 57. He and fellow condemned Alabama prisoner Alan Eugene Miller, also 57, are the only two living people in the U.S. to survive an execution attempt.
On September 22, 2022, DOC executioners poked, prodded, and punctured Miller in the arms, hands, and feet for over two hours before they finally threw in the towel. After that, the state settled with Miller on November 28, 2022, agreeing not to try to kill him again except by nitrogen hypoxia. His chosen method, it became a legally available option five years ago, though DOC still hasn’t developed a protocol for it. [See: PLN, Mar. 2023, p.50.]
But first, without taking steps to review what went wrong at Miller’s unsuccessful execution, DOC officials moved forward on November 17, 2022, with preparations to execute Smith. Then the U.S. Court of Appeals for the Eleventh Circuit Court of Appeals issued a stay order at 7:59 p.m., finding Smith stated a viable claim that his execution via lethal injection would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Smith also wanted to be killed by nitrogen hypoxia, and the state still had no protocol ready. To which the Eleventh Circuit said, “If a State adopts a particular method of … execution … it thereby concedes that the method of execution is available to its inmates.” See: Smith v. Comm’r Ala. Dept. of Corr., 2022 U.S. App Lexis 31789 (11th Cir. 2022).
Notwithstanding that order, DOC officials strapped Smith to a gurney in the death chamber and gave him no notice of the stay. “At around 10:00 p.m., an IV team entered the execution chamber and began repeatedly jabbing Mr. Smith’s arms and hands with needles, well past the point at which the executioners should have known it was not reasonably possible to access a vein,” Smith’s attorneys alleged in their court filing. He “was then tilted in an inverse crucifixion position while strapped to the gurney and left there for several minutes while the IV team left the room.”
In a prior lawsuit filed by Smith, DOC represented that it “does not deliver intermuscular injections as part of the execution.” The federal court for the Middle District of Alabama also entered an order prohibiting DOC from using “intermuscular sedation” during Smith’s execution. However, when the IV team returned to the execution chamber, Smith was injected with an unknown substance, which was believed to be some sort of sedative or anesthetic.
After that, a person of unknown medical credentials wearing a face shield repeatedly jabbed Smith’s collarbone area with a large needle, trying to begin a central IV line in his subclavian vein. Smith’s cries of pain during the ordeal went ignored. By 11:20 p.m., rumors swirled among media observers that the execution had been called off. Around midnight the attempted execution stopped.
The failed attempt inflicted “grave physical pain and emotional trauma” upon Smith, “the likes of which the human brain is unable to process,” according to his lawsuit. The botched execution attempts on Allen and him, as well as the troubled July 2022 killing of Joe Nathan James – which took three hours and involved a cut down procedure that left him unresponsive when the death chamber curtain was opened – all demonstrated that DOC’s execution protocol “is, in practice at least, entirely illusory,” leaving executions to be carried out “by individuals who are either unable or unwilling to follow the Protocol,” the complaint alleged.
After the Eleventh Circuit issued its stay, Defendant state officials asked the U.S. Supreme Court for a writ of certiorari to hear an appeal. That request was denied on May 15, 2023, over the objections of two justices, Clarence Thomas and Samuel Alito, who didn’t want to force the state to provide the alternative execution method it already approved. See: Hamm v. Smith, 2023 U.S. LEXIS 2047.
Apparently Thomas and Alito would let states devise any number of execution methods they have no intention of using. Meanwhile Smith’s case is returning to the district court, and PLN will report developments as they are available.
Smith and co-defendant John Forrest Parker were convicted of the 1988 contract killing of Elizabeth Sennett, 45, for which each was reportedly paid $1,000 by her husband, Rev. Charles Sennett, also 45. The pastor of Westside Church of Christ in Sheffield was having an affair and deeply in debt. He had also taken out a life insurance policy on his wife. He committed suicide a week after her killing, as investigators closed in. For introducing him to the killers, a tenant, Billy Gray Williams, got a life sentence. Smith was also given a life sentence by a jury, but the judge overrode that decision and condemned him in 1989. Parker was sentenced to death and executed in 2010 at age 42.
Smith is represented in his suit by attorney Andrew B. Johnson of Bradley Arant Boult Cummings LLP in Birmingham, with co-consul from Arnold & Porter LLP; Angelique A. Ciliberti of Washington, DC; and David A. Kerschner, Jeffrey H. Horowitz and Robert M. Grass of New York City. See: Smith v. Hamm, USDC (M.D. Ala.), Case No. 2:22-cv-00497.