Federal appeals court allows new execution by nitrogen hypoxia to proceed

The State of Alabama is free to execute Kenneth Eugene Smith on Thursday by nitrogen hypoxia after a federal appeals court ruled the method was not unconstitutional.

The 11th Circuit Court of Appeals denied Smith’s motion for a stay of execution on Wednesday, agreeing with the district court that Smith had “failed to show a substantial likelihood of success on the merits of his claims.”

“While Smith will likely appeal to the U.S. Supreme Court, my office stands ready to carry on the fight for Liz Sennett. Two courts have now rejected Smith’s claims. I remain confident that the Supreme Court will come down on the side of justice and that Smith’s execution will be carried out tomorrow,” Alabama Attorney General Steve Marshall said on Wednesday.

Smith is due to be executed during a 30-hour window starting Thursday for his part in a 1988 murder for hire.

Smith was one of three men convicted in the 1988 murder-for-hire plot of Elizabeth Sennett. Prosecutors said Sennett's husband, Charles, hired Billy Williams to kill his wife. Williams recruited Smith and John Parker and paid them $1,000 each. Parker was put to death in 2010, and Williams, who was sentenced to life in prison, died behind bars.

“The Alabama Supreme Court correctly rejected Smith’s attempt to bar the State from executing him by any method at all. We welcome the U.S. Supreme Court’s rejection of Smith’s attempt to undo that decision. As litigation proceeds on Smith’s federal court challenge to nitrogen hypoxia, the State remains confident that the execution, and long-awaited justice, will proceed as planned,” Marshall said.