Opinion: The case for the death penalty's 'nearly perfect method of execution'

Kenneth Smith's Alabama execution failed in 2022.
(Alabama Dept. of Corrections photo via Newsweek)

While the death penalty is a contentious topic, it's a fact that some executions have been botched by methods that promise to render the convicted unconscious and then induce death, only to have the person still living in extreme pain at the end of a failed termination. Stuart A. Creque explores Kenneth Eugene Smith's case in Alabama and the death penalty's new "painless drug" in his opinion for The Wall Street Journal.

Kenneth Eugene Smith was convicted and sentenced to death for the murder-for-hire slaying of 45-year-old Elizabeth Sennett, whom Smith and another man, John Forrest Parker, beat to death with the promise of payment from her husband of $1,000 apiece. Parker was also convicted in the killing and was executed in 2010.

On Aug. 25, Alabama Attorney General Steve Marshall "filed a request with the state Supreme Court for a date to execute Mr. Smith. If the state does so, it may mark a fundamental shift in the method of capital punishment in the U.S.

"In 2007, Smith amended his 2006 appeal of his capital sentence to object to lethal injection as his method of execution, alleging that it could subject him to substantial pain. As if to prove his point, Smith’s scheduled execution on Nov. 17, 2022, had to be cancelled after technicians failed to place intravenous needles into his veins before his death warrant expired.

"Smith’s lawsuit demanded that the state use a different method: nitrogen anoxia. . . .The 2018, Alabama law approved this method. . . . Nitrogen anoxia is painless. It requires no drugs, poisons or medical procedures, and its effects are well-understood, consistent and reliable. Its first symptom is loss of consciousness.

"The electric chair, the gas chamber and lethal injection were all invented with the goal of making executions more humane by instantly inducing unconsciousness. The hope was that the condemned wouldn’t feel pain. But none of those methods reliably cause unconsciousness as an initial effect.

"Marshall has stated in his Supreme Court filing that Alabama intends to execute Smith by nitrogen anoxia. Smith’s lawyers have already filed an appeal based on their argument that using this method is 'human experimentation.' . . . Inevitably, there will be delays due to this and other litigation, but the method’s first use may come as early as 2024.

"Society doesn’t view it as morally acceptable to inflict the same suffering on a murderer that he inflicted on his victim. Nitrogen anoxia will inflict no physical pain; a murderer such as Smith will merely forfeit the balance of his natural life span."