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A federal judge has thrown out the lawsuit of an Alabama man convicted in a 1988 murder-for-hire.

In a decision released Sunday, U.S. District Judge R. Austin Huffaker, Jr. denied Kenneth Eugene Smith’s challenge to his scheduled execution which is slated to be carried out on November 17.

Smith filed the suit after claiming that the Alabama Department of Corrections (ADOC) did not give him sufficient information to be executed via nitrogen hypoxia.

Smith claims the state’s lethal injection protocol violates his right to be free from cruel and unusual punishment under the Eighth Amendment, and the purported waiver of his right to elect an execution by nitrogen hypoxia violates his 14th Amendment right to due process.

Smith claimed that had he known that the state was offering him a choice between nitrogen hypoxia and a lethal injection protocol that “subjects him to an intolerable risk of torture, cruelty, or substantial pain,” he would have elected to undergo the former.

Huffaker dismissed Smith’s claim, saying he missed the required timeframe to challenge his execution method.

Smith was placed on death row after being convicted of the murder of Elizabeth Dorlene Sennett.

Prosecutors said Smith was one of two men who were each paid $1,000 to kill Sennett on behalf of her husband, Charles Sennett, a pastor who was deeply in debt and wanted to collect on insurance.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen. The process does not have a structured protocol, but it would involve replacing breathed oxygen with nitrogen, causing the individual to drift to sleep and pass away. Some have argued that the method would be more humane, while others have likened it to human experimentation.  

While Alabama is currently preparing a protocol for the novel execution method, the state has not given a suitable timeframe for its availability.

Smith was initially convicted in 1989, and a jury voted 10-2 to recommend a death sentence, which a judge imposed. His conviction was overturned on appeal in 1992. He was retried and convicted again in 1996. This time, the jury recommended a life sentence by a vote of 11-1, but a judge overrode the jury’s recommendation and sentenced Smith to death. 

To connect with the author of this story, or to comment, email craig.monger@1819news.com.

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