The Execution of Kenneth Eugene Smith: Nitrogen Hypoxia and the Evolution of Capital Punishment in Alabama

1.0: The Execution of Kenneth Eugene Smith: Nitrogen Hypoxia and the Evolution of Capital Punishment in Alabama

In January 2024, the State of Alabama executed Kenneth Eugene Smith by nitrogen hypoxia, marking the first use of the method in human history.¹ This singular event represented not merely a technological innovation in capital punishment but a convergence of long standing political, legal and logistical crises surrounding executions.² The execution illuminates the evolving legal landscape of method litigation, the intersection of statutory authorization and judicial oversight, and the profound ethical debates surrounding the death penalty.³ Understanding how Alabama arrived at this moment---and how the courts responded to constitutional challenges---requires comprehensive examination of Smith's case history, the state's legislative developments, the detailed judicial reasoning that permitted the execution and the broader implications for capital punishment.⁴

I. The Case of Kenneth Smith

Kenneth Smith was convicted of capital murder for his role in the 1988 killing of Elizabeth Sennett, a middle aged woman murdered in Colbert County, Alabama.⁵ Prosecutors alleged that her husband, Rev. Charles Sennett Sr., deeply in debt and seeking to collect insurance proceeds, arranged her death through intermediaries who recruited Smith and another man to carry out the killing for $1,000 each.⁶ Smith admitted involvement in the assault but maintained that he never intended to kill her and wasn't the actual killer.⁷

Smith's first trial in 1989 resulted in a conviction that was later overturned on appeal due to evidentiary issues.⁸ A second trial in 1996 again resulted in conviction.⁹ Although the jury recommended a sentence of life imprisonment without parole by a vote of eleven to one, the presiding judge exercised the statutory authority then in place to override the jury's recommendation and imposed the death penalty.¹⁰ At the time, Alabama was one of the few states allowing judicial override of a jury's life recommendation, a practice later abolished in 2017.¹¹

For decades, Smith pursued appeals and postconviction relief in both state and federal courts.¹² In November 2022, the state attempted to execute him by lethal injection, but the effort was called off after officials failed to establish intravenous access within the authorized time window.¹³ In litigation that followed, his attorneys argued that the botched attempt caused physical and psychological trauma and that another attempt by lethal injection would violate the Eighth Amendment's ban on cruel and unusual punishment.¹⁴ The state subsequently moved to carry out his execution by nitrogen hypoxia, a method authorized by statute but never before implemented anywhere in the world.¹⁵

II. Legislative Origins of Nitrogen Hypoxia

Alabama's authorization of nitrogen hypoxia emerged from both logistical and legal challenges facing lethal injection.¹⁶ Faced with nationwide shortages of execution drugs and repeated litigation over injection protocols, the Alabama legislature passed Senate Bill 272 in 2018 (Act 2018-353), which added nitrogen hypoxia as an authorized method of execution alongside lethal injection and electrocution.¹⁷ The law permitted condemned prisoners to elect nitrogen hypoxia within thirty days of receiving their final judgment; absent such election, lethal injection remained the default.¹⁸

During legislative debate, State Senator Trip Pittman, the bill's sponsor, described nitrogen hypoxia as very effective and would result in a death without suffering, characterizing it as the most humane method of execution known to man.¹⁹ Pittman compared the process to airplane depressurization, suggesting it would be painless.²⁰ The law was also pragmatic: Alabama, like many other states, had faced lawsuits and logistical barriers obtaining execution drugs due to pharmaceutical manufacturers' refusals to supply them.²¹ Proponents framed nitrogen hypoxia as a solution to these difficulties, claiming that it would avoid the controversies associated with lethal injection and restore predictability to the state's capital punishment system.²² Legislative hearings revealed that supporters sought to maintain the state's ability to carry out executions efficiently while minimizing litigation risk.²³

The bill encountered little organized opposition during the legislative process itself.²⁴ The Alabama Senate passed it unanimously 29-0, though the House vote of 75-23 revealed some resistance.²⁵ However, the relatively muted debate reflected broader patterns in Alabama politics, where death penalty support remains strong and legislative challenges to execution methods face significant political headwinds.²⁶ The Death Penalty Information Center noted at the time that no state had ever used nitrogen gas in an execution and cautioned that the method remained entirely experimental.²⁷ Robert Dunham, then executive director of the Center, emphasized that without judicial findings about the unavailability or unconstitutionality of other methods, the authorization represented a speculative expansion of execution options rather than a necessary response to demonstrated need.²⁸ Critics who would later emerge---medical professionals, human rights advocates and religious leaders---were largely absent from or marginalized in the 2018 legislative hearings, a void that would prove significant when the state moved to implement the protocol years later.²⁹

III. Developing the Execution Protocol

Despite statutory authorization in 2018, Alabama lacked a developed protocol for nitrogen hypoxia for several years.³⁰ The Alabama Department of Corrections (ADOC) was tasked with designing the apparatus and procedures but did so largely in secrecy.³¹ Only in 2023 did the state confirm that a protocol had been completed, and even then, the publicly available version was heavily redacted.³²

The ADOC's protocol involved placing the condemned person in a chair or on a gurney, fitting a full-face respirator mask and flowing pure nitrogen gas to displace oxygen, causing death by hypoxia.³³ Officials compared the process to euthanizing animals or accidental deaths among industrial workers exposed to inert gases.³⁴ The precise technical details---including gas flow rates, mask design specifications and contingency measures in the event of mask leakage or vomiting---were heavily redacted from publicly available documents, prompting concern among advocates that the first human application of this method lacked transparency and independent verification.³⁵

The protocol's development mirrored a pattern seen in previous method innovations: legislative authorization, followed by administrative discretion and judicial review only when challenged by condemned inmates.³⁶ The state's selection of Smith for the first execution reflected both practical and procedural considerations; after the failed lethal injection attempt, he became the test case for nitrogen hypoxia.³⁷ In August 2023, the Alabama Attorney General sought an execution date for Smith, describing him as the first inmate "to be executed under the State's newly approved nitrogen hypoxia protocol."³⁸

IV. Judicial Review: District Court Proceedings

Smith's attorneys filed suit in the U.S. District Court for the Middle District of Alabama, seeking to enjoin the execution on Eighth and Fourteenth Amendment grounds.³⁹ They argued that nitrogen hypoxia was untested in humans, constituted experimental treatment and could cause prolonged suffering, including panic, convulsions or asphyxiation over several minutes.⁴⁰ The litigation framed the case as human experimentation---with Smith's counsel asserting that "no state, no country, has ever attempted to execute a person by nitrogen gas" and that "Mr. Smith is being used as a test subject."⁴¹ They cited theoretical risks including infiltration of oxygen into the mask, vomiting and aspiration and delayed unconsciousness.⁴² The state responded that the method was constitutionally permissible and that preliminary evidence suggested it was humane.⁴³

Judge R. Austin Huffaker Jr. issued a Memorandum Opinion and Order on January 10, 2024, denying the injunction and permitting the execution to proceed.⁴⁴ Huffaker acknowledged the novelty of the method from the outset, regularly asserting that execution by nitrogen hypoxia is "both new and novel."⁴⁵ He framed the inquiry according to the Supreme Court's precedents in Glossip v. Gross and Bucklew v. Precythe, noting that the Eighth Amendment prohibits methods that present a "demonstrated substantial risk of severe pain" and that challengers must also propose a feasible and readily implemented alternative method.⁴⁶

On the first consideration---whether the method posed a substantial risk of serious pain---Huffaker concluded that Smith had not met his burden of proof.⁴⁷ He wrote, "Smith is not guaranteed a painless death. On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework."⁴⁸

He further elaborated, "On this record, 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 short of death or a prolonged death."⁴⁹

Huffaker characterized Smith's evidence as, "speculation, at best 'scientific controversy,' well short 'of showing that the method creates an unacceptable risk of pain.'"⁵⁰ He dismissed claims about lack of transparency, reasoning that the procedural posture of a preliminary injunction did not require full discovery or disclosure at this stage.⁵¹

Regarding the alternative method requirement, Huffaker found that Smith's proposals---including a modified nitrogen protocol and the firing squad method used in other states---did not constitute feasible, readily implemented alternatives in Alabama's context.⁵² The court concluded that these suggestions were either speculative or impractical given the state's current execution infrastructure.⁵³

The district court also considered religious and procedural concerns. Smith's counsel requested that he be permitted to pray audibly before the witnesses while undergoing the execution procedure.⁵⁴ In a December 2023 hearing, Huffaker "encouraged" the state to consider modifying the protocol so that Smith could pray audibly "without being masked and with witnesses present prior to his planned execution."⁵⁵ Although Huffaker emphasized that the request was not an indication of how he would rule on the constitutionality of the method, it reflected the judge's sensitivity to religious liberty issues in the execution context.⁵⁶

V. Appellate Review and Dissents

Following the district court ruling, Smith appealed to the Eleventh Circuit Court of Appeals.⁵⁷ A 2-1 panel upheld Huffaker's denial of the injunction, allowing the execution to proceed.⁵⁸ However, the dissent, authored by Judge Jill A. Pryor, raised grave concerns about the experimental nature of the execution.⁵⁹ Judge Pryor wrote powerfully, "He will die. The cost, I fear, will be Mr. Smith's human dignity, and ours."⁶⁰

The dissent emphasized that nitrogen hypoxia had never been used on humans and that the risks---panic, prolonged consciousness and convulsions among others---remained largely unquantified.⁶¹ Judge Pryor highlighted "real doubts" about what Smith would experience during the execution and warned that by permitting the execution the court effectively was sanctioning a human trial without informed consent, raising profound ethical and constitutional questions.⁶²

The majority, by contrast, followed Huffaker's reasoning, concluding that Smith failed to demonstrate a substantial risk of severe pain and that alternative methods were not readily implementable in Alabama.⁶³ The U.S. Supreme Court declined to stay the execution or grant certiorari, allowing the state to proceed.⁶⁴

VI. The Execution and Immediate Reactions

On January 25, 2024, Smith was executed at Holman Correctional Facility in Atmore, Alabama.⁶⁵ According to official reports, he was strapped to a gurney and fitted with a full-face respirator mask.⁶⁶ Nitrogen gas was then released, displacing oxygen from his lungs. The reactions of those present, however, could not have been more different from the state's assurances of a quick and painless death. Witnesses reported harrowing physical responses that underscored both the experimental nature of the method and the unpredictability of human reaction.

One media eyewitness observed, "He began to shake and writhe violently, in thrashing spasms and seizure-like movements ... The force of his movements caused the gurney to visibly move at least once. Smith's arms pulled against the straps holding him to the gurney. He lifted his head off the gurney and then fell back."⁶⁷ Another reporter described Smith as appearing awake for several minutes, "at times appearing to shake and writhe on the gurney and pull against his restraints. This was followed by several minutes of heavy breathing, until his breathing was no longer perceptible."⁶⁸ Observers noted that the physical reaction lasted far longer than the state's portrayal of nitrogen hypoxia as instantaneous and humane. The ACLU of Alabama reported that "witnesses reported that Mr. Smith shook, convulsed, writhed, and gasped for minutes until he was pronounced dead at least 22 minutes after the execution began."⁶⁹

International human rights experts also emphasized the unprecedented and experimental character of the method. The United Nations Office of the High Commissioner for Human Rights stated, "We deeply regret the execution of Kenneth Eugene Smith in Alabama despite serious concerns this novel and untested method of suffocation by nitrogen gas may amount to torture, or cruel, inhuman or degrading treatment."⁷⁰ Another media observer offered a detailed account of Smith's bodily movements: "It appeared that Smith was holding his breath for as long as he could ... His whole body and head violently jerking back and forth for several minutes."⁷¹

These firsthand accounts paint a starkly different picture than the state's assurances of a peaceful death, highlighting the experimental nature of nitrogen hypoxia and the ethical tensions inherent in using a method never before applied to a human being. Attorney General Steve Marshall, by contrast, publicly characterized the execution as "historic" and "humane," framing it as proof that Alabama had "demonstrated the effectiveness of a humane alternative to lethal injection."⁷² However, the juxtaposition between official claims and witness observations---convulsions, gasping and prolonged struggle---underscores the profound gap between legal authorization, procedural protocol, and lived reality.⁷³

Collectively, these accounts crystallize the tension that runs throughout Smith's case; the courts permitted the execution based on novel legal reasoning and a heavily redacted protocol, yet those present at the execution observed a violent, distressing and prolonged human experience. The contrast emphasizes the moral and ethical challenges posed by experimental execution methods and the limits of judicial oversight when evaluating first-use procedures.⁷⁴

VII. Legal Analysis of Huffaker's Reasoning

Judge Huffaker's opinion in the Smith case reflects a distinctly conservative judicial approach to method of execution claims, one that carries significant implications for future litigation in this area. Central to the opinion is the principle that novelty alone does not render a method of execution unconstitutional.⁷⁵ Huffaker emphasized that, under Supreme Court precedent, the Constitution does not categorically prohibit the use of new execution techniques. Instead, the condemned must demonstrate a substantial risk of severe pain associated with the proposed method.⁷⁶ In other words, the court accepts that every method of execution was, at one point, novel, and that innovation in capital punishment cannot be presumed unconstitutional simply because it is untested. This reasoning effectively frames capital punishment as a field in which procedural caution, rather than categorical prohibition of new techniques, governs judicial review.

Closely linked to this principle is the exceptionally high evidentiary burden that Huffaker places on plaintiffs challenging execution methods. The court requires proof of risk "to any degree of certainty or likelihood,"⁷⁷ a standard that is particularly challenging to meet in cases involving a method's first use. By definition, there is no historical data or controlled empirical evidence to demonstrate how a condemned person will respond to nitrogen hypoxia, creating what critics have described as a logical paradox.⁷⁸ The individual challenging the execution must provide evidence that can only be generated through actual use, yet the method cannot lawfully be used until the court is satisfied that such evidence does not indicate substantial risk. Huffaker's opinion thus institutionalizes a procedural hurdle that makes successful first-use challenges exceedingly difficult, essentially requiring plaintiffs to prove a negative risk in an inherently uncertain domain.

Another dimension of the opinion is its narrow conception of alternative methods. Huffaker insisted that any proposed alternatives must be both feasible and readily implementable in the specific jurisdiction.⁷⁹ In Smith's case, the court rejected his suggested alternatives on the grounds that they were speculative or impractical in Alabama's context.⁸⁰ This narrow view channels method of execution litigation away from broad constitutional scrutiny and toward procedural contests over jurisdiction specific feasibility. The practical effect is to limit judicial inquiry to a highly circumscribed range of issues, leaving the underlying ethical and constitutional questions largely unexamined.

The opinion also demonstrates a restricted view of transparency. Huffaker accepted heavily redacted state protocols and declined to require full disclosure of the technical specifications necessary for independent review.⁸¹ By lowering transparency requirements, the court diminishes opportunities for external expert analysis and public accountability. Critics argue that this lack of disclosure hampers meaningful judicial and scientific evaluation, particularly in the case of a method as unprecedented as nitrogen hypoxia.

Legal scholars and human rights commentators have been sharply critical of Huffaker's reasoning. One observer described the opinion as exhibiting "circular logic and faulty reasoning," pointing out that the judge accepted Alabama's nitrogen hypoxia protocol without rigorous scrutiny.⁸² The critique highlights several points of concern: the absence of any prior human execution using nitrogen hypoxia, the reliance on industrial accident analogies rather than controlled experimental data and the potentially severe consequences of protocol failure, including prolonged suffering or permanent vegetative state. Taken together, these critiques suggest that the opinion favors procedural formalism over substantive consideration of the constitutional risks associated with novel execution methods.

In sum, Huffaker's decision establishes a conservative framework for evaluating method claims, emphasizing procedural hurdles, limited disclosure and a deferential stance toward state implementation of novel execution techniques. While this approach may provide clarity for courts and states seeking to adopt new methods, it also raises profound concerns regarding fairness, transparency and the meaningful protection of constitutional rights in the context of capital punishment.

VIII. Transparency, Secrecy, and Accountability

A defining feature of Alabama's nitrogen hypoxia protocol is secrecy. Most of the written procedure released by the state was redacted and officials declined to disclose critical details such as gas flow rates, mask seal specifications or contingency measures.⁸³ This opacity mirrors broader trends in American death penalty administration, where secrecy laws increasingly shield the identities of drug suppliers, execution teams and procedural details.⁸⁴

As legal scholar Deborah Denno has argued, states have turned the death chamber into a place of legal exception, where normal accountability and transparency give way to secrecy.⁸⁵ This lack of oversight intensifies concerns about experimental harm. The discrepancy between state predictions of peaceful death "within seconds" and witness descriptions of violent convulsions lasting several minutes underscores how secrecy obstructs public scrutiny and invites mistrust of official narratives.⁸⁶ The transformation of execution into what Denno calls "a bureaucratic experiment shielded from accountability" raises fundamental questions about the rule of law and democratic oversight of state violence.⁸⁷

IX. Historical and Comparative Context

The turn to nitrogen hypoxia must be understood within the broader trajectory of capital punishment in the United States. Since the late eighteenth century, each new execution method---the guillotine, hanging, the electric chair, the gas chamber, lethal injection---was initially hailed as more humane and scientifically progressive than its predecessor, only to provoke controversy and calls for reform once implemented.⁸⁸ As historian Stuart Banner consistently documents, this pattern reveals that shifts in execution methods are rarely about humanitarian advancement alone but about preserving the legitimacy of the death penalty itself.⁸⁹

Legal scholar Austin Sarat observes too that each time an execution method becomes too visible, too messy, or too obviously cruel, the state seeks to hide violence behind new technologies.⁹⁰ Alabama's adoption of nitrogen hypoxia thus can be read less as reform than as preservation---a way to maintain executions in the face of logistical constraints (drug shortages), legal challenges (litigation over lethal injection protocols) and ethical scrutiny (failed executions and botched procedures).⁹¹ Nitrogen hypoxia represents the latest iteration of this historical pattern, a purportedly clinical and bloodless technique marketed as technological progress while serving primarily to sustain the machinery of death.⁹²

X. Ethical and Human Rights Dimensions

The ethical implications of Smith's execution extend far beyond Alabama's borders. The case raises profound questions about human experimentation, informed consent and the limits of state power. International human rights law prohibits torture and cruel, inhumane or degrading treatment, standards that many advocates argue were violated by Alabama's use of an untested execution method on a human being.⁹³

The paradox of "choice" within the legal framework also merits attention. Supreme Court doctrine increasingly requires condemned inmates to propose alternative execution methods if they wish to challenge existing ones, a requirement Justice Sonia Sotomayor has criticized as "perverse."⁹⁴ In Smith's litigation, this precedent effectively compelled him to choose among potentially torturous options: lethal injection (which had already failed), electrocution or the novel nitrogen asphyxiation protocol.⁹⁵ As one commentator observed, this represents the bureaucratization of cruelty under the guise of procedural fairness.⁹⁶

The judge's acknowledgment that Smith was "not guaranteed a painless death" also underscores a troubling moral tension: that the state may lawfully proceed with execution even when suffering is possible or likely, so long as the condemned cannot prove substantial risk to a high degree of certainty.⁹⁷ This places constitutional protections largely beyond the reach of those facing experimental methods.⁹⁸

XI. Political Dimensions and Cultural Context

The political context of Alabama's approach is equally important. The state has long ranked among the nation's most aggressive in seeking executions, and its political leadership frequently invokes the death penalty as a symbol of moral clarity and resistance to perceived federal interference.⁹⁹ Attorney General Marshall's public celebration of Smith's execution---framing it as vindication and justice served---illustrates how the execution was situated within populist rhetoric.¹⁰⁰

Meanwhile, the victim's family expressed complex emotions. One of Elizabeth Sennett's sons plainly told reporters, "Nothing happened here today is going to bring Mom back," and "It's kind of a bittersweet day."¹⁰¹ Such statements illustrate the deep cultural and emotional divides that sustain the death penalty's endurance despite declining national support and growing international condemnation.¹⁰²

XII. Broader Significance and Future Implications

The judicial approval of nitrogen hypoxia in Smith's case sets important precedent for future execution method litigation.¹⁰³ By allowing the state to proceed with a novel method despite limited empirical evidence, Huffaker and the appellate majority signaled that courts will defer heavily to state assertions in the absence of substantial proof of severe pain meeting a high threshold of certainty.¹⁰⁴ Future litigants challenging new methods will face demanding evidentiary burdens, while states may adopt similarly untested protocols when conventional lethal injection becomes impractical.¹⁰⁵

Smith's execution signals a new phase in the American death penalty's technological evolution.¹⁰⁶ It demonstrates how states adapt under pressure---whether from drug shortages, litigation or moral scrutiny---to preserve the capacity to execute in the name of justice.¹⁰⁷ It also reveals the limits of constitutional safeguards. As long as courts demand proof of substantial risk of severe pain while setting evidentiary bars that can only be met through actual implementation, experimental methods will continue to pass judicial muster until after they are tried on living human beings.¹⁰⁸

Alabama's experiment may embolden other states facing similar challenges.¹⁰⁹ Oklahoma, Mississippi and a number of other states have already authorized nitrogen hypoxia but have yet to use it.¹¹⁰ Should they proceed (as Louisiana now has), Smith's execution will stand as both precedent and warning, a reminder that the search for a "humane" execution may only disguise, rather than eliminate, the violence at its core.¹¹¹

The case also highlights the interplay between judicial reasoning, ethical norms and public perception.¹¹² The stark contrast between official declarations of humanity and witness accounts of suffering, between legal validation and international condemnation, suggests that the execution succeeded legally while failing morally and humanely.¹¹³ As dissenting voices emphasized, the moral cost may include not only Smith's human dignity but also the legitimacy of judicial institutions that sanctioned what many observers characterized as state sponsored human experimentation.¹¹⁴

XIII. Conclusion

The execution of Kenneth Smith by nitrogen hypoxia represents a critical juncture in American capital punishment history.¹¹⁵ It combines a historic first-use execution with extensive judicial analysis, legislative innovation and profound ethical debate.¹¹⁶ The case illuminates how Alabama's 2018 statutory authorization evolved into a concrete execution protocol, how the courts applied existing Eighth Amendment doctrine to an entirely novel method and how legal, political, and moral considerations intersected in permitting the state to proceed.¹¹⁷

Judge Huffaker's district court opinion and the appellate proceedings reveal the tensions inherent in balancing constitutional safeguards, state prerogatives and human rights considerations.¹¹⁸ While the judicial majority accepted Alabama's assertions of humanity and efficacy, dissenting voices warned of experimentation, inadequate protections and moral compromise.¹¹⁹ The execution proceeded legally but left profound questions unanswered: whether the courts provided meaningful constitutional protection, whether transparency and accountability were adequate and whether the distinction between legal permissibility and ethical justification has become unbridgeable.¹²⁰

Framed by officials as an innovation in humane efficiency and condemned by advocates as human experimentation, Smith's execution embodies the contradictions that have long attended capital punishment---the attempt to sanitize what is inherently brutal, to render clinical what is fundamentally violent and to maintain legitimacy for a practice facing increasing logistical, legal and moral challenges.¹²¹ Alabama didn't solve the problem of humane execution...it only found a new way to hide the pain.¹²²

Smith's case is now situated as a landmark in legal, political, and ethical discussions about the death penalty, the limits of judicial oversight, and the steady evolution of execution methods in the United States.¹²³ It stands as testament to the ongoing American experiment with capital punishment---an experiment that, in this instance, transformed a condemned man into both legal precedent and human trial subject, leaving future courts, legislatures and citizens to reckon with the costs of that transformation.¹²⁴

As of this writing, the execution of Kenneth Smith is now the first of eight executions conducted by nitrogen. In this text, I intend to examine all eight, including the two that I was actually present for.

XIV. An Eyewitness Account

The legal and historical analysis presented above provides the structural framework for understanding how Kenneth Eugene Smith came to be executed by nitrogen hypoxia, including the statutes enacted, the protocols developed, the court decisions rendered and the precedents established.¹²⁵ Yet such analysis, however comprehensive, cannot fully capture the human reality of what occurred on January 25, 2024, at Holman Correctional Facility.¹²⁶ The courtroom opinions speak in the language of constitutional standards and evidentiary burdens; the legislative records invoke efficiency and humanity in the abstract.¹²⁷ But executions are not abstractions. They are concrete acts performed on a living person, witnessed by other living persons, in a specific place and time.¹²⁸

I was present that night as Kenneth Smith's spiritual advisor. What follows in the next chapter is my firsthand account of those hours---not as legal analysis or historical commentary, but as witnessed experience.¹²⁹ The transition from legal doctrine to lived reality reveals the gap between what courts authorize on paper and what actually transpires in the death chamber. My narrative offers what the redacted protocols and judicial opinions cannot: the texture of those final hours, the words spoken, the atmosphere in the room and the terrible specificity of what it means when the state transforms a constitutional theory into a human death.¹³⁰ This is what I saw, what I heard and what I carry with me from that night.¹³¹

Endnotes

1. Nicholas Bogel-Burroughs and Abbie VanSickle, "Alabama Carries Out First U.S. Execution by Nitrogen," The New York Times, Jan. 25, 2024, https://www.nytimes.com/2024/01/26/us/kenneth-smith-nitrogen-execution.html.

2. Lauren Gill, "Using Nitrogen Gas for Executions is Untested and Poorly Understood," The Appeal, Oct. 25, 2019, https://theappeal.org/using-nitrogen-gas-for-executions-is-untested-and-poorly-understood-three-states-plan-to-do-it-anyway/.

3. Deborah W. Denno, "Lethal Injection Chaos Post-Baze," Georgetown Law Journal 102 (2014). https://ir.lawnet.fordham.edu/faculty_scholarship/506.

4. Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2002).

5. State of Alabama v. Kenneth Eugene Smith, trial record, Colbert County Circuit Court, 1989.

6. Ibid.

7. Kenneth E. Smith, "Statement to the Court," sentencing hearing transcript, 1996.

8. Smith v. State, 588 So.2d 561 (Ala. Crim. App. 1991).

9. State of Alabama v. Kenneth Eugene Smith, trial record, Colbert County Circuit Court, 1996.

10. Alabama Code § 13A-5-47 (1996); sentencing order, State v. Smith, Colbert County Circuit Court, 1996.

11. Equal Justice Initiative, "Alabama Abolishes Judge Override in Death Penalty Cases," Apr. 4, 2017 (updated Apr. 11, 2017), https://eji.org/news/alabama-legislature-passes-law-abolishing-judicial-override/.

12. Smith v. State, 588 So.2d 561 (Ala. Crim. App. 1991); Ex parte Smith, 756 So.2d 957 (Ala. 2000); Smith v. Alabama, 531 U.S. 830 (2000) (denying cert.).

13. Kim Chandler, "Alabama Calls Off Execution After Difficulties Inserting IV," AP News, Nov. 18, 2022, https://apnews.com/article/alabama-executions-fd4937918b0529c07c005ace7a357b84.

14. Smith v. Hamm, 2023 WL 4080125 (M.D. Ala. 2023).

15. Alabama Act 2018-353 (Senate Bill 272); Alabama Code § 15-18-82.1.

16. Rebecca Beitsch, "Lethal Injection Drug Shortages Drive New Execution Methods," Pew Stateline, June 25, 2019, https://www.pewtrusts.org/en/research-and-analysis/articles/2019/06/25/lethal-injection-drug-shortages-drive-new-execution-methods.

17. Alabama Act 2018-353 (Senate Bill 272).

18. Alabama Code § 15-18-82.1(b)(2).

19. Alabama Senate Floor Debate, Mar. 6, 2018 (remarks of Sen. Trip Pittman). Pittman described nitrogen hypoxia as "a more humane option" that would be "less invasive," comparing the process to airplane depressurization. See also Alabama Political Reporter, "Senate Judiciary Committee Approves Execution by Nitrogen Asphyxiation," Feb. 16, 2018, https://www.alreporter.com/2018/02/16/senate-judiciary-committee-approves-execution-nitrogen-apoxia/ (Pittman: "A few seconds, and you pass out in just a few breaths. Within two minutes you would be dead."). The characterization of nitrogen hypoxia as "the most painless and humane method of execution known to man" was also later articulated by Alabama Solicitor General Edmund LaCour during oral arguments before the Eleventh Circuit Court of Appeals in Jan. 2024. See Kenneth Eugene Smith v. Commissioner, No. 24-10095 (11th Cir., Jan. 24, 2024).

20. Ibid.

21. Beitsch, supra note 16.

22. Alabama Senate Judiciary Committee Hearing, Mar. 2018, testimony of Sen. Trip Pittman.

23. Ibid.

24. Connor Sheets, "Alabama Senate Unanimously Approves Nitrogen Hypoxia Executions," AL.com, Mar. 1, 2018, https://www.al.com/news/2018/03/alabama_senate_unanimously_app.html.

25. Alabama Legislative Information System, Senate Bill 272 Vote Record, Mar. 2018.

26. Death Penalty Information Center, "Alabama," https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/alabama.

27. Death Penalty Information Center, "Alabama Becomes Third State to Authorize Nitrogen Hypoxia Executions," Mar. 2018, https://deathpenaltyinfo.org/news/alabama-becomes-third-state-to-authorize-nitrogen-hypoxia-executions.

28. Robert Dunham, quoted in Death Penalty Information Center, "Alabama Becomes Third State to Authorize Nitrogen Hypoxia Executions," Mar. 2018.

29. Dana G. Smith, "Nitrogen Execution Method Touted as More 'Humane,' but Evidence Is Lacking," Scientific American, Sept. 23, 2022, https://www.scientificamerican.com/article/nitrogen-execution-method-touted-as-more-humane-but-evidence-is-lacking.

30. Kim Chandler, "Alabama Says It Has Built Method for Nitrogen Gas Execution," AP News, Aug. 7, 2021, https://apnews.com/article/alabama-executions-57c6d76d5a0f6b4a8ecb2324b7a68004.

31. Alabama Department of Corrections, "Execution by Nitrogen Hypoxia: Protocol Summary," internal memorandum, 2023.

32. Ibid (redacted version released pursuant to public records request).

33. Ibid.

34. U.S. Department of Labor, "Nitrogen Asphyxiation in Industrial Settings: Hazard Summary," OSHA Technical Report, 2017.

35. American Civil Liberties Union of Alabama, "ACLU Raises Concerns About Secrecy in Alabama's Nitrogen Hypoxia Protocol," Oct. 2023.

36. Austin Sarat, When the State Kills (Princeton: Princeton University Press, 2001).

37. Kim Chandler, "Alabama Carries Out Country's 1st Execution by Nitrogen Gas after Supreme Court Ruled It Could Proceed," PBS News Hour, Jan. 25, 2024, https://www.pbs.org/newshour/politics/u-s-supreme-court-rules-alabama-can-proceed-with-the-countrys-first-execution-by-nitrogen-gas (specifically Sotomayor's statements on test case).

38. Office of the Attorney General of Alabama, "Motion for Execution Date: Ex parte Kenneth Eugene Smith," Aug. 25, 2023.

39. Complaint, Smith v. Hamm, No. 2:23-cv-00656 (M.D. Ala., filed Sept. 2023).

40. Ibid.

41. Transcript of Oral Argument, Smith v. Hamm, No. 2:23-cv-00656 (M.D. Ala., Dec. 2023).

42. Expert Declaration, Smith v. Hamm, No. 2:23-cv-00656 (M.D. Ala., Dec. 2023).

43. Defendants' Response to Motion for Preliminary Injunction, Smith v. Hamm, No. 2:23-cv-00656 (M.D. Ala., Jan. 2024).

44. Smith v. Hamm, No. 2:23-cv-00656-RAH (M.D. Ala., Jan. 10, 2024), Memorandum Opinion and Order.

45. Smith v. Hamm, No. 2:23-cv-00656-RAH (M.D. Ala., Jan. 10, 2024), at 17, 35; the 11^th^ Circuit used similar language at Kenneth Eugene Smith v. Commissioner, No. 24-100095 (11^th^ Cir. Jan. 24, 2024), at 17.

46. Glossip v. Gross, 576 U.S. 863 (2015); Bucklew v. Precythe, 139 S. Ct. 1112 (2019).

47. Smith v. Hamm, Memorandum Opinion at 35-44.

48. Ibid, 44.

49. Ibid, 41-42.

50. Ibid, 43.

51. Ibid, 34--44.

52. Ibid, 36-37 and 42-44.

53. Ibid.

54. Motion for Religious Accommodation, Smith v. Hamm, No. 2:23-cv-00656 (M.D. Ala., Dec. 2023).

55. "Judge Suggests Change to Nitrogen Execution to Let Inmate Pray and Say Final Words without Gas Mask," AP News, Dec. 21, 2023, https://apnews.com/article/alabama-execution-nitrogen-judge-huffaker-b68d35e3e91b8f58197f28ea8b52918e.

56. Smith v. Hamm, Dec. 2023 Hearing Transcript and Memorandum Opinion at 47.

57. Kenneth Eugene Smith v. Commissioner, Alabama Department of Corrections, No. 24-10095 (11th Cir., Jan. 24, 2024).

58. Ibid, majority opinion.

59. Ibid, dissent of Judge Jill A. Pryor.

60. Ibid.

61. Ibid.

62. Ibid.

63. Ibid, majority opinion.

64. Smith v. Alabama, No. 23A763 (U.S., Jan. 25, 2024) (order denying stay of execution).

65. Alabama Department of Corrections, "Execution Summary: Kenneth Eugene Smith," Jan. 25, 2024.

66. Pool Witness Report, Kenneth Smith Execution, Holman Correctional Facility, Jan. 25, 2024.

67. Kim Chandler, "What Happened at the Nation's First Nitrogen Gas Execution: An AP Eyewitness Account," AP News, Jan. 27, 2024, https://apnews.com/article/54848cb06ce32d4b462a77b1bb25e656 ("He began to shake and writhe violently ... the gurney visibly moved").

68. Ed Pilkington, "Alabama Inmate Executed with Nitrogen Gas Was 'Shaking Violently,' Witnesses Say," The Guardian, Jan. 26, 2024, https://www.theguardian.com/us-news/2024/jan/25/alabama-executes-kenneth-smith-nitrogen-gas ("Smith appeared awake for several minutes ... heavy breathing").

69. ACLU of Alabama press release, Jan. 26, 2024, https://www.aclualabama.org/en/news/kenneth-smith-executed-nitrogen-hypoxia ("Witnesses reported that Mr. Smith shook, convulsed, writhed, and gasped").

70. Volker Türk, Statement on Alabama Execution, Jan. 26, 2024, https://www.ohchr.org/en/statements-and-speeches/2024/01/alabama-execution ("I deeply regret the execution of Kenneth Eugene Smith in Alabama despite serious concerns this novel and untested method of suffocation by nitrogen gas may amount to torture, or cruel, inhuman or degrading treatment"); see also UN News, "US: Türk Voices Regret Over First Ever Execution by Nitrogen Suffocation," Jan. 26, 2024, https://news.un.org/en/story/2024/01/1145947.

71. Ralph Chapoco, "Kenneth Eugene Smith Executed by Nitrogen Gas for 1988 Murder-For-Hire Scheme," Alabama Reflector, Jan. 25, 2024, https://alabamareflector.com/2024/01/25/kenneth-eugene-smith-executed-by-nitrogen-gas-for-1988-murder-for-hire-scheme/; Alander Rocha, "Alabama Attorney General Defends First Execution by Nitrogen Gas, Anticipates National Trend," Alabama Reflector, Jan. 26, 2024, https://alabamareflector.com/2024/01/26/alabama-attorney-general-defends-first-execution-by-nitrogen-gas-anticipates-national-trend ("It appeared that Smith was holding his breath ... violently jerking back and forth").

72. Steve Marshall, "Statement on the Execution of Kenneth Eugene Smith," Office of the Attorney General of Alabama, Jan. 26, 2024, https://www.alabamaag.gov/alabama-attorney-general-steve-marshall-statement-on-the-execution-of-murderer-kenneth-smith-by-nitrogen-hypoxia.

73. Bogel-Burroughs and VanSickle, supra note 1.

74. Maya Foa, quoted in Sam Levin and Ed Pilkington, "Alabama Condemned for Nitrogen Gas Execution: 'They Intended to Torture Him,'" The Guardian, Jan. 26, 2024, https://www.theguardian.com/us-news/2024/jan/26/alabama-nitrogen-gas-execution-torture; ACLU press release, Jan. 25, 2024.

75. Smith v. Hamm, Memorandum Opinion at 42-43.

76. Ibid.

77. Ibid, 35-36 & 41-43.

78. Denno, supra note 3.

79. Smith v. Hamm, Memorandum Opinion at 18-20 & 43-44.

80. Ibid, 43-44.

81. Ibid, 5.

82. Stephen Cooper, "Mengele-Like Logic Underpins Alabama's Plan to Gas a Man to Death," Montgomery Adverstiser, https://www.montgomeryadvertiser.com/story/opinion/contributors/2024/01/25/mengele-like-logic-underpins-alabamas-plan-to-gas-a-man-to-death/72356085007.

83. Smith v. Hamm, No. 2:23-cv-00656, Exhibit A (redacted protocol).

84. Denno, supra note 3.

85. Ibid.

86. Bogel-Burroughs and VanSickle, supra note 1.

87. Denno, supra note 3.

88. Banner, supra note 4.

89. Ibid.

90. Sarat, supra note 36.

91. Ibid.

92. Ibid.

93. UN Office of the High Commissioner for Human Rights, Jan. 27, 2024.

94. Glossip v. Gross, 576 U.S. 863 (2015) (Sotomayor, J., dissenting).

95. Smith v. Hamm, Memorandum Opinion at 18-20 and 36--37.

96. Cooper, supra note 82.

97. Smith v. Hamm, Memorandum Opinion at 44.

98. Ibid.

99. Death Penalty Information Center, "Alabama," https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/alabama.

100. Marshall, supra note 72.

101. Associated Press, "Victim's Family Speaks After Execution," Jan. 26, 2024, https://apnews.com/article/victims-family-speaks-execution; "'His Debt Was Paid Tonight': Sennett Brothers Find Closure in Execution of Their Mother's Killer," WVTM13, Jan. 26, 2024, https://www.wvtm13.com/article/elizabeth-sennett-kenneth-smith-execution/46545025 (Following the execution, Mike Sennett, one of Elizabeth Sennett's sons, told reporters: "Nothing happened here today is going to bring Mom back. It's kind of a bittersweet day. We are not going to be jumping around, whooping and hollering and all that." He added, "His debt was paid tonight" and "Elizabeth Dorlene Sennett got her justice tonight"); see also Associated Press, Jan. 26, 2024.

102. Gallup, "Death Penalty Polling," 2023, https://news.gallup.com/poll/1606/death-penalty.aspx; see also Türk and UN News, supra note 70.

103. Kenneth Eugene Smith v. Commissioner, No. 24-10095 (11th Cir., Jan. 2024).

104. Ibid.

105. Ibid.

106. Banner, supra note 4.

107. Sarat, supra note 36.

108. Smith v. Hamm, Memorandum Opinion at 45--46.

109. Kim Chandler and Sean Murphy, "Will Other States Replicate Alabama's Nitrogen Execution?," AP News, Jan. 27, 2024, https://apnews.com/article/nitrogen-execution-alabama-oklahoma-lethal-injection-c088b01aeb581da7bfb73e52aa6caf3f.

110. Mississippi Code § 99-19-51; Oklahoma Stat. Tit. 22 § 1014.

111. Bogel-Burroughs and VanSickle, supra note 1.

112. Denno, supra note 3.

113. UN Office of the High Commissioner for Human Rights, Jan. 27, 2024.

114. Kenneth Eugene Smith v. Commissioner, No. 24-10095 (11th Cir., Jan. 2024), dissent of Judge Pryor.

115. Ibid, majority opinion.

116. Alabama Act 2018-353 (Senate Bill 272).

117. Smith v. Hamm, Memorandum Opinion.

118. Ibid.

119. Kenneth Eugene Smith v. Commissioner, dissent of Judge Pryor.

120. Ibid.

121. Banner, supra note 4.

122. Multiple statements at anti-death penalty press conference following execution; The juxtaposition between official claims of humanity and witness descriptions of violent convulsions prompted renewed scholarly attention to historical patterns. As Austin Sarat has observed, each innovation in execution technology has promised to render state killing more humane while ultimately revealing new forms of violence. See Sarat, supra note 36.

123. Kim Chandler, "U.S. at Front of Death Penalty Debate after Alabama Execution Uses Nitrogen Gas, the First Ever," PBS News Hour, Jan. 26, 2024, https://www.pbs.org/newshour/nation/us-at-front-of-death-penalty-debate-after-alabama-execution-uses-nitrogen-gas-the-first-ever; William W. Berry III, "State Constitutional Limits on Nitrogen Hypoxia Executions," University of Illinois Law Review, 2025 (examining how nitrogen hypoxia execution methods may conflict with state constitutional punishment clauses and interact with evolving death-penalty jurisprudence); Leah Roemer, "The World Is Watching: Witnesses Report Kenneth Smith Appeared Conscious, 'Shook and Writhed' During First-Ever Nitrogen Hypoxia Execution," Death Penalty Information Center, Jan. 26, 2024, https://deathpenaltyinfo.org/the-world-is-watching-witnesses-report-kenneth-smith-appeared-conscious-shook-and-writhed-during-first-ever-nitrogen-hypoxia-execution; see also Hoffman v. Westcott, No. 25-70006 (5th Cir. 2025) (condemned inmates argued that nitrogen hypoxia execution protocols create a substantial risk of severe pain in violation of the Eighth Amendment, and a federal district court initially issued a preliminary injunction).

124. Ibid.

125. Alabama Department of Corrections, "Execution by Nitrogen Hypoxia: Protocol Summary," internal memorandum, 2023.

126. Personal observation of author, Holman Correctional Facility, Jan. 25, 2024.

127. For example Smith v. Hamm, Memorandum Opinion.

128. Personal observation of author in writings after Smith execution.

129. Personal observation of author as spiritual advisor, Holman Correctional Facility, Jan. 25, 2024.

130. Ibid.

131. Ibid.

**

1.1: Personal Account of the Execution of Kenneth Smith on January 25, 2024

Holman Prison in Atmore, Alabama is a place of nightmares. Sounds of rain echoed outside Holman that January day, but it was nothing compared to the tears hitting the floor inside. There are few sounds I've heard that were as jarring as the cries that accompanied those tears. For days, Kenny Smith had been given the opportunity to say goodbye, and the goodbyes culminated in those final minutes. As Kenny's spiritual advisor, I knew that I would get to talk to him again before he was executed. The rest of the gathered wouldn't have such a luxury. When time was up, Kenny was asked to come to the door by multiple guards. I was left to minister to those who were leaving. I didn't know what else to say except, "I love you." How else do you comfort people in such a time? I did the best I could.

Now left alone, I could see through the windows that everyone who had left was looking at me in the visiting room. Knowing they were so desperate for one more second, I felt guilty that I was going to get to spend more time with Kenny. But I couldn't keep thinking about it. I had work to do. Behind the door where Kenny was taken, I could hear a bit of commotion. I didn't know what it was until later.

Solitude is a frightening position in times of heightened tension. You're left to deal with the horror of uncertainty. There was an extended delay and I repeatedly cried out to God for guidance. The only thing that I heard was, "Keep going." So, I did. I walked all over the visiting room. I guess you could say that every step was a prayer.

Eventually, I noticed that you could see into the offices of the prison. I watched the staff of the Alabama Attorney General and Department of Corrections walk around the hallway of the offices through a small window. When they noticed me watching, they got sheets of paper to cover the window. I knew they were cowards, but to fear me seeing them took that cowardice to a new level. I tried to just shake it off. There was nothing I could do about it. I just kept praying. "Maybe God will suffocate their murderous desires with love?" Of course, suffocation was on my mind.

One cannot overstate how incompetent the execution squad of Holman Prison is. In recent years, the Holman guards had botched more executions than any other squad in the country. So I was concerned about what was to come. I thought about my wife and kids. I prayed they would know how much I loved them. Such thoughts briefly gave way to tears. Then, I brought myself back to the task at hand: prayer, fierce prayer. I heard the voices say, "Keep going."

The smell of food shocked me at such a precarious moment. I could see tins of it being delivered through the front door, accompanied by boisterous talking and laughter. I realized it was for the party after the execution. These folks did not care that they were murdering someone, they were just excited about the brisket. I'd worn myself out walking all over the room, and the extreme stress compounded it all. So much so, that I allowed myself to lay down on a few chairs. Lights started to spin. I stared at the lights and was taken by them. I was so alone, so tired. I realized that I was dozing off. Hell, I'd been awake for almost three days straight. In the confusion of it all, I repeatedly heard the cry of Jesus---which I assumed was also now the cry of Kenny, "Couldn't you just stay awake with me?" Minutes later, the guards broke the confusion and loudly called my name. It was time. I jumped up. Unsteady on my feet, I wobbled back and forth. I couldn't get my legs up under me and the guard couldn't figure out what was going on. Leaning against the table, I pulled it together. Or maybe God did, I don't know. I just knew it was time to proceed with the execution. I had to walk. Kenny needed me.

Each step caused my stomach to grow tighter and tighter. I was so sick. I literally thought that my nerves might make me shit myself. If my nerves didn't, the condition of the prison might. The hallways smelled like decomposing flesh. I felt like I was going to turn a corner and find a meat locker full of the bodies of former prisoners. It is hard to find words to do justice to the overwhelming terror of the smell alone. In recent years, various parts of the prison had been condemned. It is easy to see why. Trying to find some relief, I tried to make small talk with the guard who was escorting me, but she wasn't having it. One of the other guards had informed me earlier that I had the reputation of a troublemaker. "Good trouble," I replied. I couldn't help but notice that there was fresh paint on the walls and that the floors were freshly scrubbed. It was like they thought that they could cover up all the evil with paint and cleaner. Little did they know, evil don't cover up that easily.

When we arrived at the huge metal door, I knew where we were. We were very close to death. The guard knocked three times. The door slowly swung open. Guards lined the wall. Not at attention. More like they were all just hanging out. The commotion surrounding everything other than the execution was deafening. There was a television playing the old sitcom Wings. I hadn't seen the show in years and never really thought that it was all that good then. Can you imagine if the last thing you watched was some shitty 90's sitcom? Other guards had leaned back in their chairs and fallen asleep. The unprofessional nature of it all was absolutely shocking. I heard multiple guards say, "I'm hungry, I'm just ready to get this over with so we can eat." They are within speaking distance of a man about to die who hadn't had much to eat all day, talking about how they couldn't wait for him to die so that they could eat?!?! When they finally opened the door to let me see Kenny, he was making his final phone calls. Of course, there were multiple people that he wanted to call. Instead of helping him, the guards acted like they were annoyed that they had to dial the number. Nobody wanted distraction from their sitcom, naps, and insensitive conversations. The demons of dispassion frolicked all over the room.

As Kenny spoke to his sisters and his son, I kept a steady eye on the oxygen monitor (clearly manufactured by co2meter.com). The reading was 25.4 which was higher than the 22 that I had observed previously in the week. I figured that they had to be pumping oxygen into the chamber. I started to get a headache, but tried desperately to ignore it and keep all my focus on Kenny. I couldn't find my Bible in the rush to get to the prison that morning, so I had to use a Gideons Bible from the hotel. As I was talking to Kenny, I started tearing little pieces off the Bible out of nerves. Then, Kenny told me what happened when he'd left the visiting chamber. Multiple guards told him strip off all of his clothes. Angry, Kenny resisted, but was immediately forced to comply. Once they had all off his clothes off, Kenny shook his dick at them. Immediately, they snatched him and made him put his clothes back on. I knew I'd heard a commotion.

The front of the waiting cell is covered with plexiglass, as if you are sitting in a fishbowl. Multiple guards noticed me tearing at the cover of the Bible and started to stare fiercely. I didn't care. Tearing the cover of a Bible was not against any rules or regulations. When he was done on the phone, Kenny and I talked briefly about our two favorite subjects: love and life. He wanted me to make sure I told his family how much he loved them. Then, he wanted me to make sure that I told the world that he wasn't just ready to go, but that he was ecstatic about it. He joyously talked about his release date and the fact that he was finally getting out of prison. Through it all, I wanted to make sure he was ok. He said, "I ain't scared of no valley of the shadow of death." Even in his final moments, Kenny wanted me to know that we were marching forward together. It's ironic, I was working my ass off to comfort him---but he was working his ass off to comfort me. We proceeded forth as brothers.

We briefly went over his final words as the guard banged on the cell. It was time for me to go. I assured him I'd be back shortly. Kenny made it clear how he felt, "I ain't worried about you. I ain't never been worried about you." Standing up, I got dizzy again. It was cold. I kept pushing to do what I was told. As I left, I briefly turned my head back to Kenny. The joy in his face assured me that he wasn't putting anyone on. He was genuinely happy at the thought of finally getting out of Holman. If I were him, I would be too. I passed an area on my right that the Department of Corrections was using as a staging area, and I couldn't get past the fact that they were plotting their final moves behind a curtain. I realized that death was getting closer. I could smell it. I kept praying that God would be with Kenny. I felt the presence of evil as viscerally as I ever had. Evil incarnate was behind that curtain.

"Can I please go to the bathroom?" I knew if I had to hold it through the execution, I'd never make it. There was some confusion as to whether I could go or not. Even taking a piss was controversial in prison. It wasn't too long after I left the bathroom that I was called to go back to the waiting room. Along the way, I tried once more to strike up a conversation with the guard. To my surprise, she briefly relented and made it very clear that she didn't want to participate in any of this. I pondered the way that evil so often traps even the most unwilling participant. I guess that's the nature of systems that suffocate? When we arrived back at the big metal door, the guard started to knock in increments of three, but nobody came to the door. I realized that Kenny was being true to his word. He'd assured me that he wasn't going to go quietly. Feeling like she had to say something, the guard stated the obvious, "He's resisting." I found myself strangely proud of him. Not for the violence, but for the fact that he refused to allow his murder to happen easily. Shouldn't it be difficult to kill someone? Finally, the door opened. I was scared, but I was determined to fear no evil.

I noticed that the guards in the waiting cell area were all gone. I wondered where they went. Then, the huge door to the chamber opened. Wonder turned to a cold reality. The guards were now lining the small walls of the execution chamber. They were no longer the unprofessional group I'd encountered before; they were now licensed murderers at attention, otherwise known as an execution squad. I had to stop and look around for a split second. There were at least twelve guards in the room along with the regional director of prisons, Cynthia Stewart-Riley. I couldn't believe that it took all these folks to strap Kenny to that gurney. I'd never seen anything like it. Kenny is not that big of a dude, and some of these guards were huge. By the look on Kenny's face though, I could tell he was very proud of his efforts. He just smiled and whispered, "I'm giving them hell."

Nerves birthed nerves as I tried to command a vile of oil and a Bible in front of the prison staff. Of course, they all looked at me as if I was the devil incarnate. If their God was execution, then I guess I was. But I was certain that I was going to spill the oil all over the floor. Kenny whispered something I'll never forget, "We got this." We were walking deeper and deeper into the valley that both of us had dreaded so much. I started to read the 14^th^ chapter of the Gospel of John.

"Jesus said, 'Do not let your hearts be troubled...'" It was then that Kenny started to talk back with fierceness.

"I won't."

"Believe in God; believe also in me."

"I do."

"In my Father's house there are many rooms."

"Thank you, Jesus! Yes, Lord!"

"If it were not so, would I have told you that I'm going to prepare a place for you?"

"I believe!"

"And if I go and prepare a place for you, I will come and get you that where I am there you will be also."

"I'm so ready for freedom Jeff. This is my release date. Praise God! Hallelujah."

"You know the way."

"I'm not looking back. I know the way." By this point, our words had become a symphony of spirituality. Kenny wanted everyone in the room to know that God was on our side. I also have no doubt that he wanted those on the outside to know what these moments were like.

"Jesus said, I am the way and the truth and the life." In those moments, we were putting love and life into every second that we had together. We refused to walk through the valley without the deep spirituality that drew us to each other in the first place. Kenny was teaching me not to be afraid, to trust the way, to believe the truth, and to embrace life. Of course, these are peculiar truths to try to cling to when your friend is strapped to a gurney in front of you. Through it all, Kenny kept smiling and softly chanting "release date" when he wasn't responding to the readings of the text. I was shocked. I'd never seen someone approach death with such fierceness, such courage. Nasty stares seemed to be getting closer. The eyes of the death squad reminded me that time was growing short. I rushed to the 23^rd^ Psalm. The call and response began anew.

"The Lord is my shepherd; I shall not want."

"Damn right!"

"He makes me lie down in green pastures."

"Green as shit!"

"He restores my soul..."

"I feel it God!"

"...he leads me in paths of righteousness for his name's sake."

"The one and only name!"

"Yea, though I walk through the valley of the shadow of death..."

"We're here Jeff!"

"...I will fear no evil."

"I ain't fearing shit."

"Thou art with me..."

"I really feel it." As I was trying to get the oil ready, I skipped a few words by accident. Kenny laughed at the scene of it all.

"...though anoints my head with oil." Then, I leaned over.

"Kenny Smith, you are a beloved child of God. Go to that place where you have always known that you are from. Do not delay. Love is waiting to manifest in you the fullness of love. May the smell of this oil guide you to the fullness of who you were created to be. The oil of God, the promise of the life to come. Kenny, you are free. In the name of the Father, and of the Son, and of the Holy Spirit. All beauty is now yours, my friend. Go in power."

The frankincense filled the room with an intense aroma. I wanted to make sure that Kenny was able to viscerally smell the presence of God. The excess oil was all over my hands. I rubbed it on the sheet that he was laying on. I didn't want to take any excess smell with me. I knew that he would need it more than I. One of the guards moved his hand in a circular hurrying motion. Even in these final moments, they were trying to hurry the thing up. I wasn't going to stop until I was done with what I'd planned to do.

To conclude, I read a passage that I read at every execution, the Gospel of John, chapter 8, verses 1 through 11. Kenny knew the words that were to come. He closed his eyes with a big grin on his face. When we were speaking earlier in the day, he wanted to make sure I read the passages loudly. I did. The story talks about a woman caught in adultery who was thrown at the feet of Jesus by government authorities intent on stoning her according to their law. When they demanded Jesus tell them what they should do, he got down in the dirt with the woman and intensely declared one of the most famous lines in all of scripture: "You who are without sin cast the first stone!"

Kenny had been quiet up until this point. But when he heard the words, he rose and spoke loudly to his executioners. "You know he's talking to y'all, right?!?!" Kenny wanted to make sure that his final act of resistance was confronting all these so-called Christian guards with the words of the savior they claimed to serve. I put my hand on his head once again and told him that God was with him. Repeatedly, he told me, "I've got this. I've got this. I've got this." Then he paused for a second and said, "We've got this." After making the sign of the cross again on his forehead, I turned to leave. As I was walking out the door, Kenny let out another encouragement: "Don't be sad, Jeff. It's my release date."

I took a deep breath to calm my nerves and started walking, trying to distract myself from the chaos around me. I was taken through the big doors of the prison and led down a different route than earlier. Suddenly, I found myself outside in the rain looking at the fence surrounding the prison. Honestly, I thought they might be trying to kick me out because I read the words of Jesus commanding them to stop. But then I was ushered into a trailer to find Kenny's wife, Dee Smith; his son, Steven Tiggleman; his lawyer, Robert Grass; and a journalist named Lee Hedgepeth. They thought that the execution might have been delayed further, but when I told them that I'd already anointed Kenny with oil and that they were putting the mask on him, those hopes were quickly dashed. We exchanged a few words before I was taken away again.

The guard kindly offered me an umbrella, but I declined as the rain served as a reminder that this nightmare was real. As we entered back into the building, my wet feet made noise on the waxed floor, giving me a sense of control. When we approached the big metal door to the execution chamber, the guard knocked three times but there was no answer. We sat outside waiting for another extended period. No matter how many times she knocked, nobody answered. Growing frustrated, the guard declared, "He's resisting again." This time I decided to respond, "Wouldn't you?" The response produced a deafening silence from the guard.

If I live, I am God's. If I die, I am God's. No matter what happens, I am God's. The small prayer encompassed my attention for a time. Then, the dam broke and questions wouldn't stop filling my mind.

Were they having to sedate him?

Will I be able to talk to him?

Were they roughing him up?

What is he going to look like?

Do they stop the execution if they can't get the mask on?

How are these guys able to live with themselves after doing some shit like this?

Then I lifted my foot up and slammed it down. The sound startled the guard. I didn't care; it was the only way that I could stop my mind. I closed my eyes. With every ounce of strength that I could muster, I projected myself to God. The prayer was simpler now: Be near. I don't know how much time had passed. I just know that I was startled when the door opened.

"It's time."

Immediately, I realized that everyone was gone. The waiting cell was empty. The hallway was empty. The chairs were empty. Then, I heard footsteps behind me. Turning around, I noticed two goons in suits whose sole purpose was to escort me on the short walk to the execution chamber. When I asked if I needed to continue walking, they said nothing. I felt a hand on my back pushing me forward. Then, I felt more hands pushing me forward. There was nobody there.

Keep going.

I could hear audible whispers in my ear. My mind stopped. I knew who they were. I recognized their voices. I wasn't walking alone.

Keep going.

On my left, I saw all of Kenny's stuff in his cell. The rustled sheets stood out. Only a short time earlier, I'd sat on that bed and prayed with him. There were still traces of water in the shower. Trying to think more of presence than absence, I kept walking. Like the hearts of all the gathered, the hallway was cold. Whether I was getting too much or too little oxygen, I don't know. I just know that I was feeling strange. I didn't know if I was going to make it to the door. The oxygen monitor at the end of the hallway still read 25.4.

Keep going.

I finally made it. Briefly, I looked back. I was alone again. Haunted.

The guard opened the execution chamber. I turned toward the gurney. When I saw the mask for the first time, I gasped. I muttered "What in the fuck?" under my breath. I just couldn't believe this was actually happening.

The front of the mask was clear. It looked like a firefighter's mask with a tube attached to the control center behind it. Straps attached to the gurney pulled the mask back in every direction, which pulled it unbelievably tight to Kenny's face. I could see the skin around the rim bunched up. The top of the mask was right at his hairline. The bottom was at his chin. Kenny's skin was red with irritation everywhere. Sensing my horror, Kenny looked up and said, again, "We got this."

I was moved to my spot at the back of the room. Through it all, I kept telling Kenny how much everybody loved him.

"I know."

His response made me briefly chuckle. He was always blunt. Amid the horror, I'll never forget his smile. The mask couldn't take that away from those of us who loved him. Bopping his head back and forth as if he was listening to music, Kenny kept on smiling. His movements let me clearly know that the mask was attached to the gurney.

Before I left earlier, Kenny had asked me to pay attention to everything---his tan clothing, cheap-looking mask with a blue rim, a sheet covering him, the plastic accordion-like tubing. The room looked like a hospital room in a dilapidated hospital, illuminated with the cheapest lighting possible. The State of Alabama didn't go all-out to put this thing together, that was for damn sure. Knowing how important it would be later, I kept trying to remember details. Of course, Kenny was concerned about me. Indeed, he kept saying things like, "We're walking through the valley of the shadow of death together." "We've got this brother." "Thank you, Jeff." "I love you, man." That was who Kenny was: at his best, someone supremely concerned about the welfare of those around him.

Trying to not neglect the complexity of the moment, I kept praying for the Sennett family. I knew that they were about to witness a horror show as well. Like it or not, we'd all been brought to this moment of evil together. Time slowed down. I wanted to run. It was too painful. I fixed my eyes on the participants. Of course, they were not alone in the production of such horror, but I couldn't help but feel tremendous anger towards them.

Unbeknownst to them, I knew a great deal about them. The guard on the right, McKenzie, had drawn multiple accusations of using excessive force against inmates. Quarles, on the left, had been repeatedly described as an "insecure ball of raging anxiety." Next to me, Regional Director Stewart-Riley stood tall with what appeared to be a sense of accomplishment. A former warden, Stewart-Riley had been frustrated that she couldn't carry out executions more expeditiously. I'd seen multiple videos of her testifying about the need for nitrogen executions as a more humane means of execution.

Each guard had taken off their name badge. My assumption was that they thought this would keep people from identifying them. I knew better. I knew that there were a great many people who already knew who they were. And I couldn't help but wonder why anyone would want to hide from their actions if they truly believed in what they were doing. On the other hand, Stewart-Riley never hid. If anything, she was the hype woman for this moral suicide. She was dressed in clothes that looked like she had just walked out of church. Yet, here we all were together. Stuck in a fish tank of our own absurdity. I wanted to believe that they were all a part of something far from me, but I was standing right there in the room. Even if I'd wanted to, I couldn't leave. We had created this prison. The door was locked from the inside. Even if it took all night, nobody was getting out of there until it was over.

Through the window behind me, I could see various state officials filling up the room. I knew they were there, and they couldn't help but know that I was too. I was directly in their line of sight. Perhaps, presence is the best response to injustice that one can sometimes provide. Even if it was a brief glance, I did want to make sure that they understood that I would know what they were about to do to Kenny.

My heart ached with love and horror as I watched him lying on the gurney. He had shared his last words with me earlier, expressing feelings of loneliness and abandonment. "My God, my God, why have you forsaken me?" His words echoed in my mind as I struggled to come to terms with being present for such an unjust act. But then Kenny's voice brought me back to reality. "We've got this," he reassured me again, calmly. It was as if, in this moment, he was not only my spiritual charge but my spiritual guide.

Keep going. I heard the voices return.

As the time for the execution approached, there was a noticeable shift in the demeanor of those involved. Before the curtains opened, there was a sense of anticipation and nervous energy among them. Whispers and glances were exchanged, and some even wore smiles as if it were just another day at the office. Behind me, the witness rooms were filling up. I could hear it. The demeanor of the guards started to change. Then, they pulled back the curtains. Now, the horror wasn't just mine alone. It was for the world to share in.

Knowing that the execution was about to start, my family popped into my mind. Each of their faces lingered. Terror shot up my spine. Nitrogen was nothing to play with. "Am I about to die?" I didn't know. I just knew that I had a job to do. I was there to be present for Kenny. With a fierce determination, I quieted my mind.

Keep going. Now I saw the faces of the guys I'd accompanied before. I felt their presence. All those I had stood with at their executions before---a somber kinship that gave me the strength to keep standing and bearing witness to this grave injustice. I leaned back against a pole that was behind me. It was the only thing that seemed prepared to support me.

Looking up, I could see that Kenny was still smiling and shaking his head back and forth. He wanted to make sure that the last voluntary thing that the world saw from him was resistance. Kenny was not going to allow himself to be destroyed by the process. Nobody was going to take away the joy that he cherished so much.

"It's my release date."

I heard it loud and clear. He wanted to make sure that everybody else heard it too. Then, he started to tell all of his witnesses that he loved them one by one, mouthing each word starkly. Pushing against the arm restraint, Kenny also extended his index finger, pinky and thumb toward each person. For a second, I couldn't figure out what he was doing. Then, I realized he was giving the universal sign for "I love you."

Briefly glancing in my direction, Kenny furrowed his brow. In that split-second delay, I think we were both thinking the same thing: "Where in the hell is Raybon?" The doors at the back of the chamber swung open. Warden Terry Raybon shuffled toward the microphone. "Notorious" doesn't fully capture Raybon. Here was a man about to pronounce judgment on Kenny, who himself was described by a judge as someone who "beats on women, consorts with felons, and neglects his official duties."

I leaned into the moment. How could this be happening? My eyes focused on his every step. It was as if he was gliding by me and leaving slime on the floor behind him. When he arrived at the microphone, Warden Raybon unhooked it and fumbled it a bit. I thought he had dropped it. Then, he did the classic tap on the microphone to see if it was on. I'm sure my facial expression betrayed my thoughts. WTF? Does this guy think he's auditioning for the talent show? It was yet another moment of lunacy. Wouldn't they have made sure that the microphone worked by now? Kenny lifted his eyebrows slightly. We were back on the same page.

In a low, gravelly voice, Warden Raybon read a bunch of words and said a bunch of names to let everybody know that he was just doing his job and that he had to kill Kenny. The thing is, he didn't. Nobody in that room had to do anything. They were all there because they chose to be. They chose to be killers. No amount of water was going to be able to wash away their culpability in what was about to happen.

When he was nearing the end of his speech, I saw Stewart-Riley nod her head as if to greenlight the whole thing. The room seemed to be filled with anticipation. Kenny's face was now the measure of all to come. When he shifted slightly, I wondered if they'd turned the nitrogen on early. Nope. I guess he was just getting comfortable.

As Warden Raybon read the final lines, my mind shifted to the victim, Elizabeth Sennett. I'm sure she was a kind woman. I'm sure she loved her boys. I'm sure that she would've had to at least think twice about what was about to happen in her name. But the truth was that Warden Raybon was the one who was supposed to be her representative. What irony. The guy who had repeatedly beat women was the person in the chamber supposed to represent her. It felt horrific to think that a family who'd been through so much was about to be put through another round of horror. But as Warden Raybon repeatedly made clear, the State of Alabama and the blood of Elizabeth Sennett demanded this. Finally, he stopped talking. Kenny leaned back, then forward. He knew what was next.

Warden Raybon leaned in slowly and said, "Do you have any final words?" In the moments Kenny and I had together earlier, he told me that he didn't want to emote all over the place. He wanted to make a statement that reverberated far beyond the chamber. Loudly, he declared in that unmistakable folksy drawl, "Tonight, Alabama causes humanity to take a step backwards. I'm leaving with love, peace, and light. Thank you for supporting me. Love all of you."

I could've almost mouthed what Kenny was going to say. I just didn't expect him to deliver the words with such power. I got goosebumps. There was no doubt that he was certain of every word. Certain of love, peace, and light.

McKenzie nodded his head. It was my turn to approach the end of the gurney. Though there were only a few steps between where I was standing and the gurney, each movement of flesh felt like agony. The gurney is cruciform, and it was as if I was going to the feet of the cross. One cannot approach the cross and not feel that the weight of the world is on their back. That's because it is. I stopped next to Kenny's legs. Repeatedly, I was told that I couldn't go farther. When I finished my journey to that very spot, I looked into Kenny's eyes, and he said, "Love you, brother. Thank you." I felt every word. I wanted so badly to save him. I knew the prayer that both of us needed. We'd prayed it together before. "Even though I walk through the valley of the shadow of death, I will fear no evil." I repeated it softly three times. After I spoke the words each time, I made the sign of the cross on Kenny's shins. I pressed down as firmly as I could. I wanted him to know that the limitless and endless love of God was with him. When I finished, I mouthed, "Go to God." He softly mouthed, "Release date."

I didn't want to leave. I knew as soon as I did the nitrogen would start to flow. Can you imagine standing there and knowing whenever you move someone you love is going to die? It was so torturous. I was trying to grasp every breath, but there was no fighting back. What was I supposed to do, filibuster? Stay up there until they tackled me, or arrested me? I had no choice. I had to step back. When I did, I left part of me on that gurney. The moral torture of that moment will haunt me forever. Evil was everywhere. I guess at that point it possessed us all. We were morally suffocated by nitrogen hypoxia before the nitrogen was ever released.

I stumbled back to my spot at the back of the chamber. I had no idea what was about to happen. Nobody did. The sound in the chamber started to change, and there was a hiss that quickly increased in volume. Kenny knew it was coming. I could see it in his face, like somebody waiting to take a punch. McKenzie started to approach the mask. I was surprised because this was not what they said would happen. Something was wrong. After a slight adjustment, the horror began.

The look on his face grew more and more intense with every passing second, and the color in his face started to change. Veins started to flex. Every muscle in his body started to tense. We'd talked for weeks prior to this moment about what he wanted to do. Never did he say that he was going to hold his breath. When we were already well past the seconds that we were told it would take, I began to wonder what was happening. His chest moved up and down with gusto. He was clearly trying to breathe. Shouldn't he be unconscious already? He clearly wasn't. He started to look as if his head was going to pop off. I leaned back. There was nowhere to fall, and there was a nightmare unfolding in front of me. The expressions of the guards shifted dramatically as they were obviously questioning what was going on too. Out of the corner of my eye, I noticed that Stewart-Riley had moved. This coward was shifting away from Kenny. Her experiment wasn't proceeding as planned and she was moving away. Every inch of her face was flexing with concern. Kenny's reactions grew more visceral and violent.

The gurney wasn't supposed to move. Yet move it did. Kenny started heaving back and forth. The restraints weren't enough to keep him still, and he was shaking the entire gurney. I couldn't believe my eyes, and I'd never seen something so violent. Kenny's muscles looked like they were going to combust. Veins spiderwebbed in every direction all over his body. It looked like an army of ants were running throughout every centimeter of his body. Nothing was calm, everything was moving everywhere all at once over and over. His face. My God...his face. The gurney was attached to the mask to hold it in place, but the force of Kenny's movement repeatedly mashed his face against the front of the mask. I kept wondering if his bulging eyeballs were going to shoot right through. Saliva, mucus, and a host of other substances shot out his mouth and started drizzling down the inside of the mask. Back and forth, Kenny kept heaving. It was now going on minutes, and Kenny was very much still conscious. I could see the horror in his eyes. I will never forget that look of horror.

A moral apocalypse was in full motion. God seemed so dead. I don't know that I have ever felt so lost. With every thrust, Kenny seemed to be begging for my help. I did nothing. I just leaned back. I started slipping. I didn't know if I was going to stay standing. I felt like someone was taking my soul out of my body and cutting it into pieces. I could see them on the floor. I wanted to pick them up and run to save Kenny. But I knew I couldn't. I knew that the State of Alabama had killed any semblance of morality that I had left while they executed Kenny. Seeking comfort and seeking to give comfort, I kept making the sign of the cross. Desperately, I was trying to manifest some semblance of God in this forsaken place. Hope was all that I had, and that was disintegrating too.

Taking off my glasses, I sobbed. I'd never felt so far away from God. I prayed that Kenny would know how much I loved him. I prayed that he would forgive me for not jumping on the gurney and ripping off the mask. I was doing the best that I could. We all have decisions to make. I hope no one ever again has to deal with the lack of options that I had in that chamber. Life was never a choice. I prayed repeatedly, "Even though I walk through the valley of the shadow of death..." It didn't feel like anybody anywhere was listening.

The anxiety of Stewart-Riley and the guards grew with every second. Stewart-Riley kept tapping her high heels. It literally sounded like somebody was tap dancing. What in the hell was she thinking? The mastermind of all of this. The tap-dancing torturer. The guards couldn't hide their looks of concern, looks that they might be in way over their heads. Alabama's meatheads feeding us all through the moral grinder. While I wished there could be some sort of justice right then and there, I knew that history would not be kind to the perpetrators of such barbarity.

Kenny's convulsions gave way to deep breathing, which then gave way to shallow breathing. There wasn't a point where I knew I saw Kenny take his last breath, but the guards began to close the curtains at their first opportunity. In fact, it seemed like they sprinted over to hide what they'd just done. I didn't think that Kenny was dead yet. I saw slight movements in his chest. It didn't matter. Unlike most other states, the State of Alabama does not pronounce a time of death in the chamber. Meaning, nobody who witnessed this execution was able to leave and affirmatively state that Kenny was actually dead.

The guards came forward to escort me out of the room. Quarles was determined to push me out the door, but I was not going to leave until I made the sign of the cross one more time over Kenny to commend his soul to God. I did so and then was hurried out past the waiting cell where his stuff was still laying. In the waiting chamber, I met the guard who had escorted me earlier and we walked past the control center cell, where the curtain was now drawn. There in his green scrubs and white jacket stood the doctor who presided over all this lunacy. For so long, he'd remained unnamed, a hidden monster selected to make sure all the execution processes worked. From the look of shock on his face, it was obvious that he didn't want to see me. I stopped briefly. I wanted to make sure I got a good look. He had a sort of pinkish complexion. He was balding. He had white hair shooting out from the sides of his head. He was taller than me. Regardless of whether he ever will be identified, I now knew his secret. He had violated his promise as a physician to "do no harm," the moral compass of his profession, and he will never be able to escape what he did. I hope I live in his nightmares. The guard pushed me down the hall, and we quickly passed through the dilapidated halls that I'd passed through before. Past the rot. Past the mold. Past the falling ceilings. I was given my keys and license at the front door. Before I knew it, I was standing outside the gate. I tried to breathe, but I was still suffocating.

From the beginning, Kenny had made it very clear that he wanted me to tell the world what happened, so I ran across the parking lot and jumped in my car. I raced down the desolate entrance road to Holman, past the vans filled with all the witnesses. When I made it to the corner entrance to the prison grounds, I jumped out of the car and ran to the tent. There waiting was Isabel Rosales from CNN. I stood and delivered as best I could. I told the world. When I started to break down, I heard some familiar voices again, now with one very recognizable addition.

Keep going!

I haven't stopped.

1.2: 11^th^ Circuit Court of Appeals Judge Jill Pryor's Dissent in Smith v. Hamm: A Moral and Constitutional Reckoning

Circuit Judge Jill A. Pryor offered a powerful and moralistic dissent in the Eleventh Circuit's decision to allow Alabama to execute Kenneth Eugene Smith by nitrogen hypoxia. In her view, the state was conducting an experiment on a vulnerable man---one haunted by trauma from a prior botched execution attempt---and the court's majority was failing its constitutional duty. Her dissent raises profound concerns about dignity, risk and the human cost of legal innovation.

Pryor begins by highlighting the radical nature of Alabama's undertaking. The state did not opt for lethal injection, the traditional method. Instead, it chose to kill Smith with nitrogen gas---a method "never tested" on humans, she notes, and fraught with "real doubts" about whether it can guarantee constitutional protections.¹ For her, the decision to use this untested protocol is not just technical. It is deeply personal, because Smith is a man traumatized by his previous failed execution attempt. Pryor emphasizes that in 2022, Alabama tried to execute him and failed, leaving him physically and psychologically scarred.²

She paints a vivid and chilling picture of what will happen when the execution date arrives. Smith will be strapped to the same gurney that once held him in agony, nitrogen will flow and he will breathe the gas through the mask.³ But this is not "just" an execution. Smith suffers from post-traumatic stress disorder (PTSD), a condition the dissent says is "undisputed," which causes him to vomit persistently.⁴ When deprived of oxygen---a known effect of nitrogen hypoxia---vomiting becomes even more likely, and Pryor warns that the state has made clear that the executioners will not intervene if that happens.⁵ She foresees a grim cascade: vomit filling the mask, flowing into Smith's nose and mouth, even as he continues to breathe it in, until his body finally succumbs to asphyxiation or both asphyxiation and oxygen deprivation.⁶

Pryor frames this not merely as a physiological risk, but as a profound insult to human dignity. She writes, "He will die. The cost, I fear, will be Mr. Smith's human dignity, and ours."⁷ By invoking Hall v. Florida, she stresses that dignity is not an abstract value but a constitutional one; the court's decision affects not only Smith but the moral standing of the judiciary itself.⁸

At the heart of her legal argument is the Supreme Court's standard from Bucklew v. Precythe: a condemned person must show that the risk of severe pain is "substantial" compared to a known, available alternative.^9^ The district court had rejected both prongs---the "substantial risk" and the "alternative"---and, in Pryor's view, wrongly so. She criticizes the lower court for adopting a "veritable blueprint" standard for alternatives, which she sees as overly stringent and legally unsound.¹⁰ Pryor argues that Smith did in fact identify a known and available alternative in the form of a firing squad, and that the court should have taken that seriously rather than demand a fully detailed protocol redesign.¹¹

But it is her challenge to the court's factual findings about risk that is perhaps most searing. The district court, she notes, described Smith's fear of vomiting during execution as dependent on a "cascade of unlikely events."¹² Pryor flatly rejects that characterization. She insists that the record shows vomiting is highly likely, given both the undeniable effects of oxygen deprivation and Smith's documented PTSD stemming from the earlier botched execution.¹³ Because the record shows "persistent vomiting" and because executioners will not intervene, she contends that Smith will likely choke on his own vomit under nitrogen, experiencing "painful physical sensations of choking and suffocation."¹⁴ That sequence, she argues, is not hypothetical but a "cascade of likely events"---and, therefore, the risk meets the "substantial" threshold required under the Eighth Amendment.

On the basis of that risk, Pryor would find that Smith has demonstrated a "substantial likelihood of success" on the merits of his Eighth Amendment claim---and she would block the execution pending further review.¹⁵ Her dissent is not only legal but deeply moral; she asserts a responsibility not just to follow precedent but to weigh the humanity of the condemned. In her final lines, she warns that allowing this execution would degrade us as much as it degrades Smith: "human dignity... ."¹⁶

Pryor's dissent raises larger questions about the role of experimentation in capital punishment. When a state introduces a wholly new method, is it constitutionally permissible merely to rely on theoretical assurances and faint empirical evidence? Or must judges demand more, to insist on rigorous testing, transparency and respect for individual vulnerability? In Pryor's view, the Eleventh Circuit panel failed that test. Her dissent argues that the court should not be a passive rubber stamp for untested protocols. Rather, it should stand as a bulwark against the risk that the state turns a man into a guinea pig.

This moral framing resonates deeply. By focusing on Smith's PTSD, his prior trauma and the threat to his dignity, Pryor humanizes him. She refuses to leave the debate at the level of scientific models or procedural formalities. Instead, she demands that the court confront the real terrifying possibility that Smith will choke, vomit and suffocate---and with no one to help. That, she warns, is not a technical failure. It is a failure of justice.

In sum, Judge Jill Pryor's dissent is not a dry judicial disagreement; it is an urgent moral appeal. She warns that in the name of innovation, the court risks abandoning fundamental values: dignity, humanity and the very meaning of "cruel and unusual" in the Eighth Amendment. Her dissent challenges both the majority and the state, insisting that the price of innovation should not be the degradation of a man---or of our shared humanity.

Endnotes

1. Smith v. Commissioner, Alabama Department. of Corrections, No. 24‑10095 (11th Cir. Jan. 24, 2024) (dissenting opinion of Pryor, J.), available at Justia Law, https://law.justia.com/cases/federal/appellate-courts/ca11/24-10095/24-10095-2024-01-24.html.

2. Ibid, 33.

3. Ibid, 33--34 (describing the chamber, gurney, and mask).

4. Ibid, 33.

5. Ibid, 33-34 (observing that "if Mr. Smith vomits ... his executioners will not intervene ... even as vomit fills the mask ...").

6. Ibid, 33-34.

7. Ibid, 34.

8. Ibid, 34 (citing Hall v. Florida, 572 U.S. 701, 708 [2014]).

9. Ibid, 34--35 (quoting Bucklew v. Precythe, 139 S. Ct. 1112, 1125 [2019]).

10. Ibid, 34 (critiquing the district court for requiring a "veritable blueprint").

11. Ibid, 34 (arguing firing squad is a "known and available alternative").

12. Ibid, 34 (disputing the district court's "cascade of unlikely events" characterization).

13. Ibid, 34--35 (explaining that PTSD and oxygen deprivation make vomiting likely).

14. Ibid, 35 (describing risk of "painful physical sensations of choking and suffocation" from inhaling vomit).

15. Ibid, 34-35 (concluding Smith has "substantial likelihood of success" on Eighth Amendment claim).

16. Ibid, 33-35 (warning that "He will die ... The cost ... will be Mr. Smith's human dignity, and ours").