On January 25, 2024, in the grisly debut of a new form of execution, Kenneth Smith was executed by inhaling nitrogen hypoxia, or pure nitrogen, through a mask until he suffocated. The State of Alabama claimed this would be a painless death, yet witnesses reported seeing Kenneth gasp for air, convulse, and writhe in pain for over twenty minutes. That time is an estimate since workers closed the execution curtain before the official time of death was given, leading to further questions surrounding the validity of this execution.
You may recognize the name Kenneth Smith as he made headlines in 2022 when he was set for execution via lethal injection, but it was called off after hours of needle insertions since a suitable vein was never found. This was the first execution by nitrogen gas in the United States, which looks to set a dangerous precedent in other states like ours for the future.
Back in 1988 Kenneth Smith confessed to being involved in the murder of Elizabeth Sennett. The victim’s husband, Charles Sennett, hired three men to kill his wife while she was at home. Two of the men entered Mrs. Sennett’s home on the pretext of discussing using some of her land to hunt on, since her husband had given them the okay to do so. They spent some time conversing until, according to Kenneth Smith, John Parker began beating Mrs. Sennett. During the beating, Kenneth roughed up the house to make it look like a burglary, and he nabbed a few items to take with him. One item he took was a VCR, which later led to his arrest.
While Kenneth agreed initially to be a part of the murder, he noted in his statement to police that John delivered the fatal stab wound, and that he (Kenneth) never touched Mrs. Sennett at all. Once a tip came in, identifying all three men, Kenneth’s house was raided and the VCR was located, leading to his arrest. Kenneth was indicted on allegations that he “intentionally killed Mrs. Sennett by beating her and stabbing her with a knife, for pecuniary consideration of one thousand dollars.” In November of 1989 Kenneth was convicted of capital murder and sentenced to death on a 10-2 jury verdict. This conviction and death sentence were overturned in 1992 leading to a 1996 re-trial.
During the re-trial Kenneth’s defense counsel argued that he did knowingly engage in Mrs. Sennett’s assault but did not intend to kill her. If he did not intentionally kill Mrs. Sennett, then he could not be convicted of capital murder. During this trial the State could not provide any forensic or physical evidence, including blood or fingerprints, to tie Kenneth to the stab wounds on Mrs. Sennett’s body. Nevertheless, on April 29, 1996, Kenneth was convicted of capital murder. The judge overrode the jury’s 11-1 recommendation of life in prison without the possibility of parole and imposed a sentence of death by electrocution. Today, Alabama law does not allow a judge to override a jury’s death penalty decision.
Kenneth’s legal team made a last-ditch effort to block the execution, calling it an “experimental” punishment that would violate the constitutional ban on “cruel and unusual punishment.” Federal courts rejected this argument, including the U.S. Supreme Court. Justice Sonia Sotomayor wrote a dissenting opinion, joined by two other Justices: “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before. The world is watching.” The majority issued no opinion.
With nitrogen gas officially legal as a form of execution, Ohio is also considering a bill that would introduce it in our state. State representatives Brian Stewart and Phil Plummer introduced legislation that would allow inmates to choose between nitrogen gas and lethal injection—but would require nitrogen gas if lethal injection drugs could not be sourced.
The latest report from the Ohio Department of Rehabilitation and Correction has 118 people on death row. Back in 2020, Governor DeWine declared lethal injection “no longer an option” for the state, since it could cause inmates “severe pain and needless suffering.” Since 2018, there have been no executions in the State of Ohio. Before Governor DeWine’s unofficial pause in executions, since Ohio up until this point only uses lethal injections, there was an issue locating the drugs required for the injections. The ban is referred to as unofficial, since DeWine did not stay executions but rather eliminated the only way the state can legally carry them out.
This has led people like Republican attorney general Dave Yost to push for the use of nitrogen gas executions. Right after Kenneth Smith was put to death Yost wrote on X “perhaps nitrogen – widely available and easy to manufacture – can break the impasse of unavailability of drugs for lethal injection, death row inmates are in greater danger of dying of old age than their sentence.”
Currently there are twenty-seven states with the death penalty, twenty-three without, and six states with a gubernational hold on executions, Ohio being one of them. This new method of execution by nitrogen hypoxia has minimal testing. Most states instead opt for a combination of sodium thiopental (a barbiturate to induce anesthesia), pancuronium bromide (a muscle relaxant that paralyzes all the muscles of the body) and potassium chloride (a salt that speeds the heart up until it stops), which has been around since 1977.
With Alabama, Mississippi and Oklahoma already authorizing nitrogen hypoxia as an execution method, Ohio might be next. The outcome of Ohio lawmakers’ push for legalizing execution by nitrogen hypoxia remains to be seen as this story is unfolding. One can hope that Ohio will make the humane decision and keep this cruel and unusual punishment off our books. If for nothing else other than granting dignity in death, and reflection on the torture Kenneth Smith faced in his final moments.
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