Stop State Killing sign

A sign that reads "Stop State Killing" is seen during a vigil against the death penalty in front of the U.S. Supreme Court on June 29, 2021 in Washington, D.C. (Photo: Alex Wong/Getty Images)

SCOTUS Refuses to Stop Alabama Execution Despite Jury Calling for Life in Prison

Given that Alabama has outlawed judicial override in death penalty cases since Kenneth Eugene Smith was condemned in 1996, calls are mounting for the GOP governor to step in before he is killed.

The U.S. Supreme Court on Wednesday night declined to stop Alabama from executing Kenneth Eugene Smith, who is set to be killed by lethal injection Thursday evening--despite a jury's recommendation against the death penalty--unless Alabama Republican Gov. Kay Ivey intervenes.

"Without an intervention, Smith will be executed under a system that is no longer permissible in Alabama."

Justice Clarence Thomas referred Smith's application to the full court, which declined to stay the execution or review the case. There were no dissents mentioned in the brief order.

Smith's execution is scheduled for 6:00 pm CT Thursday at the William C. Holman Correctional Facility in Atmore. Smith and John Forrest Parker were sentenced to death for the 1988 killing of Elizabeth Sennett, whose husband, Rev. Charles Sennett, allegedly paid for her murder.

Charles Sennett killed himself a week after his wife's death and Parker was executed in 2010. Smith, who was 22 at the time of the crime, was initially convicted in 1989. A jury voted 10-2 in favor of a death sentence, which a judge imposed--but his conviction was overturned in 1992.

Smith, now 57, was retried and convicted again in 1996. That jury voted 11-1 to recommend life imprisonment without parole, but a judge overrode that decision and sentenced him to death.

According to the Alabama-based Equal Justice Initiative (EJI), "At the sentencing hearing, the jury found one aggravating circumstance (that it was a murder for hire) and several mitigating circumstances, including his young age, that he had no significant criminal history, he appeared to be remorseful for what he had done, his good conduct in jail and in counseling family members and others, and that he was neglected and deprived as a young child."

Although Alabama, in 2017, became the last U.S. state to stop letting judges override a jury's sentencing recommendation for death penalty cases, the law--signed by Ivey--is not retroactive, so it does not apply to Smith and others in his position.

If executed, Smith would be the first person sentenced by judicial override to be killed since the practice was abolished, EJI pointed out earlier this month. The group also noted that "30 people who received life verdicts from their juries are still on death row in Alabama despite evidence that override led to arbitrary, unreliable, and unconstitutional death sentences. That's nearly 20% of the people condemned to death in the state."

Smith's attorneys wrote to the Supreme Court, "That legislatures throughout the country have abolished or do not permit judicial override of capital jury sentencing determinations constitutes 'the "clearest and most reliable objective evidence of contemporary values"' that shows the practice is inconsistent with 'evolving standards of decency that mark the progress of a maturing society' and violates the Eighth Amendment to the United States Constitution as applied to the states through incorporation into the 14th Amendment."

In what he described as "not a cry for mercy, but a call for justice," Alabama Political Reporter editor-in-chief Bill Britt on Wednesday urged the governor to halt Smith's execution.

Noting that the state Legislature outlawed judicial override for cases like Smith's, Britt wrote:

If the practice is unjust now, was it not unjust then?

Without an intervention, Smith will be executed under a system that is no longer permissible in Alabama.

How is this justice?

There is a fair and temporary solution: Gov. Kay Ivey can pause Smith's execution and allow the state Legislature an opportunity to decide if the 2017 law should be amended to include those who were sentenced to death by judicial override before the legislative act of 2017.

Would it not be wise to show restraint before executing Smith?

Britt added that "based on recent missteps in Alabama's Department of Corrections' attempts to execute by lethal injection, and the anomalies in Alabama's death penalty laws, it makes sense to call for a temporary pause" in the state's plan to kill Smith.

Smith's legal team has also highlighted in court the state's problems with carrying out lethal injections--specifically, the botched July 28 execution of Joe Nathan James Jr. and the planned killing of Alan Eugene Miller, whose September 22 execution was temporarily called off due to an inability to find a vein.

"Alabama appears determined to persist with lethal injection, no matter how many executions its officials catastrophically mishandle," Reprieve U.S. director Maya Foa toldNewsweek Thursday. "Alan Miller, Joe James, and Doyle Lee Hamm were all strapped to the gurney for hours and stabbed repeatedly with needles, but the state is pressing ahead with Kenneth Smith's execution regardless, using the same broken procedure."

"Just last night, in Texas, officials took an hour and a half to kill Stephen Barbee because his disability made it hard to find a usable vein," Foa noted. "In Arizona, staff reportedly failed to insert IVs into both Murray Hooper's arms before inserting a catheter into his femoral vein near his groin."

This "spate of disastrous lethal injection executions shows that whatever the drug, whatever the protocol, condemned prisoners often spend their final hours in agonizing pain and distress," she added. "With each gruesome scene in the death chamber, we are witnessing the consequences of persisting with a broken method of execution in real-time."

A pair of United Nations experts last month marked the 20th World Day Against the Death Penalty by urging an end to capital punishment across the globe. U.S. President Joe Biden campaigned on working to outlaw the practice at the federal level and pressuring states to follow suit, but progress on either front is unlikely with the GOP set to take control of the House of Representatives in January.

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