On Wednesday, U.S. District Judge Austin Huffaker denied a petition for a preliminary injunction to prevent the scheduled nitrogen hypoxia execution of condemned killer Kenneth Eugene Smith.

Last year, the Alabama Department of Corrections (ADOC) called off Smith's execution after they were unable to establish an intravenous line to administer lethal injection. Before the failed attempt, Smith’s attorneys filed suit claiming lethal injection violated his Eighth Amendment rights and nitrogen hypoxia was his preferred method of execution. At that point, ADOC had not developed a protocol for performing nitrogen hypoxia. 

Smith’s newest claims alleged that subjecting him to the novel execution method could subject him to “superadded pain,” including the risk of a permanent vegetative state, stroke and more. Smith’s attorneys included several critiques of the state’s hypoxia protocol.

However, Huffaker disagreed.

"There is simply not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia under the Protocol is substantially likely to cause Smith superadded pain,” he said in his findings.

The decision will likely be taken to a higher court.

Smith was one of two men convicted in the 1988 murder-for-hire of Elizabeth Sennett.

Sennett died after being stabbed eight times in the chest and once on each side of the neck.

Court records show Smith and another man were paid $1,000 by Sennett's husband, Rev. Charles Sennett, to kill her. The reverend took his own life a week later, and the other suspect, John Forrest Parker, was executed in 2010.

“With today’s order, Alabama is an important step closer to holding Kenneth Smith accountable for the heinous murder-for-hire slaying of an innocent woman, Elizabeth Sennett,” said Attorney General Marshall. “Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done.” 

The State is scheduled to execute Smith on January 25.

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