Kenneth Eugene Smith Is Not Dead (Yet)

No thanks to the Supreme Court.

Stephen Barbee was denied a stay of execution by the Supreme Court of the United States and was killed in Texas on Wednesday. It took an hour and a half to kill him. 

Murray Hooper was denied a stay of execution by the Supreme Court of the United States and was killed in Arizona on Wednesday. He was convicted solely on the testimony of government informants and the (notoriously unreliable) cross-racial identification of a witness who was shown a picture of him prior to picking him out of lineup. His attorney's petitions for DNA testing that was not available at the time he was convicted were denied. He maintained his innocence til the end. 

Richard Fairchild was denied a stay of execution by the Supreme Court of the United States and was killed in Oklahoma on Thursday. He had been repeatedly confirmed to suffer from schizoaffective disorder with delusions by the Oklahoma Department of Corrections.

Kenneth Eugene Smith was denied a stay by the Supreme Court of the United States and was not executed in Alabama on Thursday. As was the case with Barbee, they couldn't find a vein.

"The U.S. Supreme Court is now functionally a rubber stamp for executions. Stays and injunctions issued by lower courts are routinely lifted without full briefing and without explanation from the justices, no matter how egregious the underlying legal issues," anti-death penalty activist Sister Helen Prejean wrote on Twitter. 

In 1996, Smith was convicted by a jury for his part in the 1988 murder-for-hire killing of Elizabeth Sennett. Pastor Charles Sennett, her cheating husband, took out an insurance policy on her life and then paid Smith and another man $1000 each to kill her and make it look like a robbery.

The same jury that convicted him also voted 11-1 that he be given a life sentence and not the death penalty. The judge in the case, however, overruled them and sentenced him to death anyway.

This is no longer legal. Alabama was the last state where judges were allowed to override a jury's sentencing in capital cases — and the only state in which judges would regularly override jury's recommendations of life sentences in favor of execution — but the law changed in 2017. 

Unfortunately for Smith, however, the law was not retroactive.

Smith requested a stay of execution back in August, on the grounds that recent botched executions in Alabama put him at risk for cruel and unusual punishment and that Alabama death row prisoners were given a brief period in 2018 to choose the supposedly more humane nitrogen hypoxia execution method over lethal injection. Smith was not informed of this and says he would have chosen that option if presented to him.

At 7: 57 p.m. on Thursday, the 11th Circuit Court of Appeals granted him a stay of execution. The state of Alabama then appealed to the Supreme Court to please let them execute him anyway

At 10: 22 p.m. the Supreme Court vacated the court of appeals's order. According to the order released by the court, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson would have denied the state's application.

At 11: 20 p.m., the state called off the execution after determining that they would not be able to find a vein and kill him before the death warrant expired.

Ironically, this is what happened in the botched executions Smith referred to in his appeals — Alan Eugene Miller was poked and prodded with needles for over an hour this past August. Miller survived the execution and his lawyers are now suing to block a second execution on the grounds that the first amounted to cruel and unusual punishment. In July, the state took three hours to execute Joe Nathan James Jr. because they could not find a vein to put the IV in and allegedly ended up cutting his arm open to find one. The state called off the execution of Doyle Hamm in 2018 after being unable to find a vein to insert an IV in.

They're not doing too good a job with this. It's not going well. One might think that someone, somewhere in Alabama might say "Hey! Maybe we should stop killing people, at least until we figure out a way to do it without poking them with a needle for several hours beforehand?"

Sadly, it does not seem like there is — and since the Supreme Court sure as hell isn't going to stop them, there's no reason to even consider it.

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