Scheduled Execution Takes Several Twists and Turns

Alabama ultimately called off the planned execution of Kenneth Smith
By Arden Dier,  Newser Staff
Posted Nov 17, 2022 10:10 AM CST
Updated Nov 18, 2022 12:36 AM CST
Jury Voted for Life in Prison. He's to Be Executed Anyway
This undated photo shows inmate Kenneth Eugene Smith, who was convicted in a 1988 murder-for-hire slaying of a preacher's wife.   (Alabama Department of Corrections via AP)
UPDATE Nov 18, 2022 12:36 AM CST

An appellate court on Thursday night issued a stay halting the scheduled execution of Alabama inmate Kenneth Eugene Smith, and the state then appealed to the US Supreme Court—which vacated the stay, theoretically allowing the 57-year-old's lethal injection to proceed. But the SCOTUS decision was issued just hours before the midnight expiration of the death warrant, and Alabama ultimately decided to halt the execution 40 minutes before midnight, the Montgomery Advertiser reports. The state said the time constraints that resulted from the court back-and-forth were the reason the execution was called off, CNN reports. SCOTUS had already, on Wednesday, denied Smith’s request to review whether his sentence was constitutional.

Nov 17, 2022 10:10 AM CST

A convicted murderer in Alabama is set to be executed Thursday despite an 11-1 jury vote backing life in prison. Kenneth Smith, found guilty of capital murder in the 1988 killing of a pastor's wife, was sentenced to death by a judge, who overruled the jury vote. Alabama was one of a handful of states to allow judicial override in 1996, the year Smith was given his death sentence by the judge, though none permit it now. Supporters say the procedure was meant to prevent arbitrary use of the death sentence, per CNN. But while Florida, Delaware, and Indiana set standards for how the law could be applied, Alabama did not. Judges were free to ignore a jury's verdict for life in prison or death in capital cases and impose the alternative, as happened in Smith's case.

Paid $1,000 by the husband of Elizabeth Sennett to kill his wife, Smith was convicted and sentenced to death in an initial trial; an appeals court overturned that conviction after finding the state had illegally sought to weed out prospective jurors based on race. He was convicted again in a 1996 retrial, but this time the jury backed life in prison, citing Smith's remorse and lack of criminal history. The judge decided death was more fitting. Smith's lawyers note that if he were tried anywhere in the country today and a jury reached the same verdict, his life would be spared. Alabama was the last state to repeal judicial override in 2017. They made this argument Tuesday in requesting the Supreme Court review the case and issue a stay of execution.

The court denied both requests, per AL.com. That wasn't a huge surprise: The court also denied a similar petition from Alabama death row inmate Calvin McMillan in 2020, per CNN. A federal lawsuit Smith filed in August, arguing that Alabama's lethal injection protocol constitutes cruel and unusual punishment, was dismissed in October, but he does have one more option. "Gov. Kay Ivey can pause Smith's execution, giving the Legislature time to decide if [the] 2017 law should have been retroactive," Editor-in-Chief Bill Britt writes at the Alabama Political Reporter. He asks "if the practice is unjust now, was it not unjust then?" As it stands, Smith is to be executed by lethal injection at Holman Correctional Facility in Atmore at 6pm local time. (Read more execution stories.)

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