MONTGOMERY — In the months leading up to his Nov. 17 botched execution, Kenneth Eugene Smith feared he would be subject to torture and substantial pain in the process.

He had been made aware of previous failures of lethal injection in Alabama, including that of Nathan James which lasted three hours before he died. James reportedly had numerous puncture wounds on his hands and arms after the curtains were opened three hours after starting the process Sept. 22, and appeared to be unconscious.

According to a complaint filed in the United States District Court for the Middle District of Alabama, Smith’s attorneys said the State — listed as defendants Attorney General Steve Marshall and other Alabama DOC officials — failed to investigate and review what happened in two previously failed lethal injection procedures, and instead proceeded to carry out Smith’s execution unsuccessfully.

His attorneys are asking the Court to order that the State not proceed with a second attempt at execution: “To subject Mr. Smith to a second execution by lethal injection would subject him to a torturous experience of unnecessary physical and psychological pain, as has been established through Alabama’s last three execution attempts. Therefore, any further attempts to execute Mr. Smith would violate the Eighth Amendment.”

The Eight Amendment of the Constitution prohibits cruel and unusual punishment. The complaint said that with lethal injection, “the risk of pain associated with the State’s method is substantial when compared to known and available alternative.”

Execution staff were unable to locate an IV vein in Smith — who was convicted of killing a pastor’s wife in a 1988 murder-for-hire — and the state did not offer a more “humane alternative” such as nitrogen hypoxia, which his attorneys say would have allowed Smith to avoid severe pain.

“Assuming proper administration, nitrogen hypoxia would cause an individual to lose consciousness within seconds and experience no pain or discomfort,” the complaint states.

However the State’s Feb. 6 motion to dismiss Smith’s complaint said the State has long been statutorily authorized to administer lethal injection, but that does not mean that lethal injection has been “available” in method-of-execution challenges ever since its inception.

“Smith alleges that nitrogen hypoxia is available for executions ‘[a]s a matter of law,’ but he cannot explain how it’s available as a matter of fact,” the state said. 

In 2018, lawmakers approved nitrogen hypoxia as a method of execution, but it has yet to implemented and used in Alabama.  

Smith’s attorneys also argue that a second execution attempt of Smith should not proceed as it would also violate his right to Equal Protection since the state settled with former inmate Doyle Hamm in 2018 after he survived a lethal injection attempt. The state entered a settlement agreement with Hamm and jointly dismissed Hamm’s pending civil rights litigation.

However the State’s Feb. 6 motion to dismiss the complaint disputed Smith’s claims of an Equal Protection violation as it related to the state’s settlement with Hamm, who did not undergo a second execution. The State argues that the cases aren’t equal or similar due to Hamm’s status as “a cancer patient with a history of intravenous drug use, which compromised the ability to access his veins.”

The State is asking the Court to deny Smith’s request for a preliminary and permanent injunction prohibiting the state from making a second attempt to execute Smith.

In its motion to dismiss, a State attorney argued that the district court lacks jurisdiction to consider a second or successive habeas petition, which is generally filed by inmates claiming that they have been unlawfully detained. The court must determine if the petition fits habeas corpus and focus on “whether a claim challenges the validity of a conviction or sentence,” the state argued. Smith’s complaint, the state said, isn’t a habeas petition and in order to overturn his death sentence he should have filed a habeas petition. 

The State also argues that claims for declaratory and injunctive relief based on past conduct are barred by sovereign immunity and qualified immunity.

“To invoke qualified immunity, a government official must have been acting within the scope of his ‘discretionary authority’ when the allegedly wrongful acts occurred,” the State responded.  

The complaint also asked the court to dismiss claims that a second attempt at lethal injection would be cruel and unusual punishment based off the first attempt.

“Allegations of pain related to difficulty achieving intravenous access do not amount to cruel and unusual punishment,” the motion to dismiss states. “But being ‘repeatedly prick[ed] . . . with a needle’ is not cruel and unusual punishment.”

On Nov. 21, after three faulty lethal injection procedures in 2022 alone, Gov. Kay Ivey issued an order pausing executions in the State, ordering the Alabama DOC to perform a “top-to-bottom review” of the state’s execution process to ensure successful executions in the future.