Alabama Botched His Execution. Now He Wants To Die Differently.

On Monday, the U.S. Supreme Court denied an appeal from the state of Alabama in its case against a death row inmate who sued for the right to be executed by gas rather than lethal injection. The ruling is the latest development following a string of failed and botched executions in Alabama—one of which the suing prisoner actually survived.

In 1996, Kenneth Eugene Smith was convicted and sentenced to death for the 1988 murder of  Elizabeth Sennett in Sheffield, Alabama. Despite the jury voting 11-1 to sentence Smith to life in prison, a judge overruled the jury and sentenced Smith to die. (Alabama became the final state to outlaw judicial overrides in 2017.)

In June 2022, Alabama’s Department of Corrections sought to schedule Smith’s execution. Smith sued the department in August, alleging that the state’s recent history of botched executions using lethal injection meant he would likely be subjected to cruel and unusual punishment in violation of his Eighth Amendment rights. He also argued that he had a 14th Amendment due process right to be informed of the comparative disadvantages of lethal injection and a gas chamber, which Alabama built in 2021.

In September 2022, the Alabama Supreme Court allowed the department to schedule Smith’s execution for November 17, 2022. On the day of his scheduled execution, the U.S. Court of Appeals for the 11th Circuit ruled in Smith’s favor, finding that the state should honor his request to be killed by nitrogen hypoxia, the state’s chosen form of lethal gas.

“Smith plausibly pleads that there is an available alternative method that will reduce the risk of severe pain,” the opinion reads. “Alabama’s statutorily authorized method of execution (nitrogen hypoxia) could not be considered unavailable simply because no mechanism to implement the procedure had been finalized.”

However, immediately after that ruling was announced, the U.S. Supreme Court lifted the stay, allowing Alabama to proceed with executing Smith by lethal injection.

Prison officials, as they’d done during two previous executions several months prior, fa