Kenneth Eugene Smith is set to be the first inmate to die using a new method of execution never before tested in the United States—suffocation by nitrogen gas.

The 58-year-old is set to be executed by the state of Alabama sometime between 12 a.m. on Thursday, January 25, and 6 a.m. on Friday, January 26. The execution will take place at William C. Holman Correctional Facility in Atmore, just miles from the state’s border with Florida.

The execution is set to happen at 6 p.m. CST. But, that doesn’t mean it will start at 6 p.m. Often, the state has had to push executions late into the night while waiting on the courts—usually the U.S. Supreme Court—to give the go ahead.

Smith has been on death row more than three decades for participating in the murder-for-hire plot of Elizabeth Dorlene Sennett in her home in Colbert County in 1988. Sennett was a pastor’s wife who was beaten and stabbed. Smith confessed to his role in the crime after the slaying, and court records show he was paid about $1,000 for killing Elizabeth Sennett.

Sennett’s husband, who admitted to family members he had hired Smith and an accomplice to kill his wife, died by suicide shortly after the murder. The accomplice was convicted and later executed in 2010.

Smith was convicted and a jury recommended he be sentenced to death. That conviction was overturned and he was convicted at a second trial and the jury recommended a life sentence, which the judge overrode and sentenced him to death again.

According to a court filing by the Alabama Attorney General’s Office, “Elizabeth welcomed Smith and his accomplice into her home, and they savagely beat her and stabbed the defenseless woman eight times in the chest and once on each side of the neck.”

Not the first execution attempt

Smith is to be strapped down to a gurney and a facemask fitted on him before the Alabama Department of Corrections releases a flow of pure nitrogen, filling his mask with the gas and leading him to lose consciousness and ultimately die.

But Thursday night, or early Friday morning, won’t be the first time Smith is escorted to the execution chamber.

Smith was first set to die on November 17, 2022, but survived that attempt after workers at the Alabama Department of Corrections couldn’t start an intravenous line for the lethal injection drugs before the state’s execution warrant expired at midnight.

That execution was called off at 11:21 p.m. that Thursday. The decision came after prison officials tried for an hour but could not complete the procedures to find access to Smith’s veins to start an intravenous line for the lethal injection. Officials did gain access to one vein and tried to perform a central line procedure, but did not have time to complete it in time for the deadline for the execution at midnight. Two IV lines are needed for a lethal injection execution, according to a redacted version of ADOC protocol.

Later, Smith claimed in court filings that he was poked and prodded with needles for hours.

That 2022 incident with getting vein access was the second failed execution attempt in months for the prison system. In September 2022, the execution of Alan Miller also had to be called off after prison workers couldn’t properly access his veins, either.

Following Smith’s attempted execution, the U.S Supreme Court ruled in favor of the inmate, siding with his lawyers who argued he should be allowed to die by nitrogen hypoxia.

Gov. Kay Ivey said at the time that Smith “chose $1,000 over the life of Elizabeth Dorlene Sennett, and he was guilty, no question about it.”

“Some three decades ago, a promise was made to Elizabeth’s family that justice would be served through a lawfully imposed death sentence… Although that justice could not be carried out tonight because of last minute legal attempts to delay or cancel the execution, attempting it was the right thing to do. My prayers are with the victim’s children and grandchildren as they are forced to relive their tragic loss.”

For today’s execution, the prison system said in court documents that Smith would be given his last meal- if he chooses one- at 10 a.m. and will not consume liquids after 4 p.m. That decision, which is not typical for lethal injection executions, was made because of the risk for vomiting into the gas mask.

The legal arguments

Despite originally arguing nitrogen hypoxia as the preferred method of execution, Smith’s legal team has been seeking a halt to the latest execution for months – a method they are calling experimental.

In a filing to the U.S. Supreme Court asking the justices to stay his execution and review his case, Smith’s lawyers said the possible injury to the inmate “outweighs the harm that a stay would cause the State, and such relief is in the public interest.”

“ADOC cannot now contend that it had no way of knowing the hot stove would burn a third time,” his lawyers wrote, citing the called-off executions of Smith and Miller and the July 2022 execution of Joe Nathan James Jr.

“And while a stay of execution is unquestionably the exception and not the rule, it is difficult to imagine a more exceptional case than one where a state intends to make a second attempt to execute a person by a never-before-used method of execution after having already subjected that same person to hours of superadded pain while trying and failing to execute him by a different method 14 months earlier, resulting in serious (and persistent) physical and emotional torment.”

The Alabama Attorney General’s Office, led by AG Steve Marshall, replied to the lawyers in a filing to the high court and said nitrogen hypoxia was “perhaps the most humane method of execution ever devised.”

“Smith challenged the State’s lethal injection protocol and demanded nitrogen hypoxia as his method of execution. Now, he characterizes nitrogen hypoxia as ‘new,’ ‘novel,’ and ‘experimental.’ Such allegations cannot fairly be the basis for relief now—after Smith litigated successfully for the method of execution he will receive,” wrote the AG’s Office.

The state also said in its filing that, since Smith requested to die by nitrogen, he “cannot reasonably assert (or rely on) a fear that his pending execution will be painful or the source of irreparable harm.”

Currently, the case is in the hands of the U.S. Supreme Court.

Wednesday night, the U.S. 11th Circuit Court of Appeals declined to halt the execution and sided with the state about the untried method. On Wednesday afternoon, the U.S Supreme Court declined to hear another one of Smith’s appeals.

His legal team appealed the 11th Circuit denial to the high court early Thursday morning.

Uncertainty leads to groups asking for a stay

The new method of execution set to be used in Smith’s has drawn eyes from across the globe.

An Amnesty International researcher asked Gov. Kay Ivey to call off the planned execution, calling the plan “disturbing.”

“This execution will be carried out by nitrogen gas, a method not previously used, on a man who was subjected to a cruel botched execution attempt just 14 months ago. The Office of the UN High Commissioner for Human Rights highlighted how this new untested method could be extremely painful, result in a botched execution, and could amount to torture or other cruel, inhuman, or degrading treatment or punishment, thereby violating international human rights treaties that the U.S. has ratified. It is high time the death penalty was abolished,” said Justin Mazzola.

The United Nations has “express(ed) alarm” over the scheduled execution.

A panel of UN experts warned that “experimental executions” will likely violate the UN convention against torture and other cruel, inhuman or degrading punishment, to which the United States is a member.

The panel also called on state and federal authorities to halt the execution, pending a review of procedures. It cited the “possibility of grave suffering which execution by pure nitrogen inhalation may cause.”

A leading Catholic charity is also making an appeal to the to halt the execution. The Sant’Egidio Community called the method is “barbarous” and said it would bring “indelible shame” to the state. The group has lobbied for decades to abolish the death penalty.

And earlier this week, representatives of churches, civil rights organizations, and anti-death penalty groups rallied at the Alabama State Capitol to protest the execution.

Esther Brown, executive director of Project Hope to Abolish the Death Penalty, noted that the law that put Smith on death row has changed. Smith’s jury recommended a sentence of life without parole, but the judge overrode that recommendation and sentenced Smith to death in 1996. Alabama has since changed the law and juries now have the final word on whether someone convicted of a capital crime receives the death penalty or life in prison.

“Kenny should not be on death row.,” Brown said. “We changed the law. But unfortunately, Alabama has a way of sticking to very ugly laws.”

On Wednesday night, a program in Birmingham featured former Alabama Death Row inmate Gary Drinkard and activists to abolish the death penalty.