The controversial, outlawed policy that keeps inmates on Alabama’s death row

Kenneth Eugene Smith was put to death last week in a nitrogen gas execution that horrified the world. Thirty other inmates in the same state are awaiting capital punishment because of a now repealed law. Michelle Del Rey reports

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Had it not been for an elected Alabama circuit judge in 1996, Kenneth Eugene Smith might not have been put to death with nitrogen gas last week.

That’s because the judge presiding over his trial, N Pride Tompkins, overruled the jury’s 11-to-1 recommendation for a life sentence without parole, rather than the death penalty. Until 2017, when the state legislature outlawed the practice, judges in Alabama had this right.

Despite the practice being outlawed, past cases were not affected.

At the time, Judge Tompkins said he believed Smith deserved the death penalty because of the nature of the crime and because he thought the jury might have been hesitant to sentence him themselves.

“Some people serving on juries, especially on these cases, have never been in court before and they don’t want the responsibility to sentence someone to death,” he told The Gadsden Times in 2004.

In the end, Smith was sentenced to death by electrocution for his involvement in the 1988 murder of 45-year-old pastor’s wife Elizabeth Sennett. Prosecutors said Smith was paid $1,000 to commit the crime along with John Forrest Parker, who was put to death in 2010.

It’s thought that the murder was orchestrated by Elizabeth Sennett’s husband, Charles Sennett, who died by suicide a week after Elizabeth died. Sennett recruited one Billy Gray Williams to hire the two men.

Williams was sentenced to life in prison and died in a state correctional facility in 2020.

It may seem uniquely unfair that Smith’s fate came down to the decision of one elected official, but it’s fairly common. Around 70 Alabama judges have used judicial override to sentence someone to death. There are currently about 30 people on the state’s death row due to the practice.

After Smith’s execution, the Alabama attorney general’s office said the total number of people waiting to be put to death in the state was 165.

Smith wasn’t the first person Judge Tompkins sentenced to die. The official previously used judicial override to overturn a jury’s 11-to-1 life-in-prison recommendation for Thomas Dale Ferguson.

Ferguson was convicted of murdering Harold Pugh and his 11-year-old son Joey Pugh in Colbert County in 1997. He has been fighting the case ever since his sentencing, claiming that his constitutional rights were violated during court proceedings. None of his appeals has been successful, nor have the appeals of any prisoner attempting to challenge judicial override in the state.

This is despite attorneys for inmates having argued that the practice is in violation of the Fifth, Sixth, Eighth and 14th amendments.

Evan Farber, a commercial litigation attorney, has been working on one such case since at least 2019. He helped file a Rule 32 petition for Oscar Roy Doster, who was convicted of three counts of capital murder and sentenced to death.

Inmates can file petitions to challenge their conviction in the court where they were sentenced. Under Alabama law, the filing went back to the sentencing judge, who did not approve Doster’s new request.

Farber has since filed a federal habeas corpus petition stating that Doster did not have effective counsel at trial. A ruling has not been issued in the matter. The jury in Doster’s case unanimously recommended a life-in-prison sentence.

The attorney first got involved with Doster’s case while working at his previous law firm, Reed Smith, in New York City. The firm took on several override cases from the state, he tells The Independent.

“They believed fundamentally that jury override was just immoral and unfair and I agreed with that,” says Farber. When approaching Doster’s case, he remains hopeful but is aware of the reality of the situation, saying: “You would like to think that you can still convince them that this isn’t appropriate, but you know that this is going to be an uphill battle.”

Alabama is not the only state to have used judicial override in the past. The state modelled its policy after Florida’s in the 1970s. It was originally envisioned as a way to bar juries from overusing the death penalty.

Florida’s statute was struck down by the US Supreme Court in 2016. Due to that ruling, Delaware – which also had an override policy but never used it to sentence someone to death – chose to “vacate”, or strike out, the capital sentences of everyone on the state’s death row. Delaware abolished the death penalty later that year.

Democratic state representative Chris England, of Tuscaloosa in Alabama, has tried to pass a bill that would allow for those who were sentenced to death through judicial override to be re-sentenced. The same bill would also require a unanimous jury for people to receive the death penalty. Currently, the state only requires that 10 out of 12 jurors recommend capital punishment.

Those provisions were included in the original legislation but were whittled away in negotiations. Chris England intends to reintroduce a bill this upcoming session targeting the statutes, but says he’ll split the policies up into two separate pieces of legislation.

“You have an aspirational goal which would be we’d get rid of the death penalty, but you’ve got a realistic goal, which means you take incremental steps toward getting to where you’re trying to go, or at the very least make it so it doesn’t happen as often,” the representative tells The Independent.

England describes Alabama’s death penalty as being seen as a fundamental part of the state’s criminal justice system used to get justice for families hurt by violent crime. “An eye for an eye,” he says, explaining how some of his colleagues view capital punishment.

The policy has historically been favoured by state residents, particularly during elections. According to the Equal Justice Initiative, an Alabama organisation that works to end mass incarceration, judicial overrides for the death penalty significantly go up in election years.

Some elected judges have even been known to campaign on their death penalty records. One campaign ad that ran before the state suspended the practice in 2017 showed a judge boasting about how he “looked into the eyes of murderers and sentenced them to death”.

The state’s crime-and-punishment culture could be one reason why the policy continued until the legislature acted.

“I​​ don’t think you’ll find anything that we do well in criminal justice, especially the Department of Corrections, or parole,” England says. “But one thing that we do well… is execute people.”

Before Smith’s execution, the state had tried to put him to death in 2022 via lethal injection, but officials were unable to find a vein to administer intravenous lines. It was the third consecutive botched lethal injection execution in the state.

Following the attempt, Smith told officials he’d like to be killed via hypoxia using nitrogen gas. That choice meant that he would become the first person in the world to be executed with the untested method. But before his death, he expressed concerns about the method, including the likelihood that he could suffer a painful death by choking on his own vomit.

Alabama officials argued that they’d discovered the “most painless and humane method of execution known to man”. Still, during Smith’s death, media witnesses said he began “writhing and thrashing” for two to four minutes and pulling against his restraints.

In court filings, officials said they believed Smith would become unconscious in seconds, but the death row inmate continued to breathe heavily for several minutes before his breathing was no longer distinguishable. Smith’s reaction, Alabama Department of Corrections commissioner John Hamm said, was nothing different from what had been expected.

Alabama has not scheduled any additional executions.

“When we were challenged to figure out a way to kill somebody, because we failed beforehand, we were so willing to go the extra mile there that we’re going to do something that nobody has ever done before,” England says.

The representative is optimistic that his proposed legislation will pass at some point in the future. But, he cautions, thinking about the other individuals on death row due to override, “the longer it takes, the less likely it’ll be needed”.

The Independent and the non-profit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to its Business Leaders Declaration Against the Death Penalty – with The Independent as the latest on the list. We join high-profile executives such as Ariana Huffington, Facebook’s Sheryl Sandberg and Virgin Group founder Sir Richard Branson as part of this initiative, and are making a pledge to highlight the injustices of the death penalty in our coverage.