The constitutional right whose protections lie nearest to the skin, flesh, and blood of each American citizen is the Eighth Amendment—the constraint on the government’s ability to punish us in cruel and unusual ways. As with any civil right, if it isn’t enforced, it effectively ceases to exist. Because its enforcement ultimately rests with the nation’s highest court, it is practically, if not ideally, a matter of politics. And though its disintegration may go unnoticed by those who, through good sense or good fortune, never encounter governmental punishment, its loss is felt acutely by those who do.
The Eighth Amendment’s destruction has now been felt this year by three men subjected to sequential execution proceedings in Alabama—one of whom died, two of whom survived. The state’s incompetence at executing its prisoners in accordance with its own protocol has degenerated into a civil-rights crisis, evident in the scattered slices and punctures of three executions gone awry in a row.
The latest of Alabama’s damned and misbegotten execution efforts unfolded last Thursday evening. I was scheduled to serve as a witness to the judicial killing of Kenneth Smith, a man I had met some months prior, when both of us began to suspect that he would, in all likelihood, soon be the subject of a mangled execution. There was little he could do to stop it, though his attorneys fought tirelessly against dismal odds to avert it, and his family prayed unceasingly for God to save him from what two other men had already endured.
What providence did hold for Smith was a severe and bracing mercy: After two days of back-and-forth among three of the nation’s courts concerning his Eighth Amendment rights and the potential of his impending execution to violate them, Smith was strapped down to a gurney for hours and tortured until his executioners simply gave up on killing him.
The Monday after Alabama attempted to kill Kenneth Smith, Governor Kay Ivey released a statement announcing a de facto moratorium on executions until “the Department of Corrections undertake[s] a top-to-bottom review of the state’s execution process” so that “the state can successfully deliver justice going forward.” In the view of the governor’s office, the ordered investigation, to be carried out by the very agency responsible for three consecutive disasters, is a regrettable but necessary step to guarantee that victims’ families are no longer promised executions the state cannot deliver. “For the sake of the victims and their families, we’ve got to get this right,” Ivey said in her press statement. That the Alabama Department of Corrections has repeatedly jeopardized, if not outright violated, the constitutional rights of some of her state’s own people seemed not to weigh heavily on her mind.
In 1988, Smith, then a 22-year-old father of four children, confessed to taking a murder-for-hire job from a 21-year-old friend of his named Billy Gray Williams, who had earlier been contracted for the murder by Charles Sennett, a pastor. The target of the plot was Sennett’s wife, 45-year-old Elizabeth Sennett, whom he wanted killed in a mock robbery gone wrong so he could collect an insurance payment. Smith was joined by another friend, John Parker, in the scheme. Sennett was to pay both men $1,000 for their participation in his wife’s murder, on top of whatever they felt like stealing while ransacking the house.
When he admitted to the crime, Smith said that he had been an active participant in planning the hit and carrying out the robbery—a Samsung VCR stolen from Sennett’s home and discovered in Smith’s possession proved crucial in establishing his guilt—but denied that he himself had beaten or stabbed the pastor’s wife. Those acts he attributed to Parker, who, along with Smith and Williams, was promptly brought to trial on charges of capital murder.
The jurors considering the fates of Smith, Parker, and Williams had an immediate problem to confront: The mastermind of the plot to murder Elizabeth Sennett, the if not for cause of the slaying, was Charles Sennett—and he was, by the time of the legal proceedings, already dead by his own hand. He had committed suicide within one week of his wife’s murder, as soon as the investigation began to close in on him, orphaning their children and leaving prosecutors with the trio of men he had enlisted to perpetrate his crime.
Not all criminal sentencing is strictly about making the convicted person pay. Courts can order therapy or rehabilitation or other forms of pro-social and restorative programs built around reform and reintegration, with goals that surpass the merely punitive. But in capital sentencing, the entire premise and point is making the convicted person pay. The sentencing portion of a capital trial finds the law at its most theatrical, with prosecutors dramatizing the brutality, forethought, cruelty, and malice that seal men’s fates, and the defense providing by way of mitigation everything that provokes mercy in a soul: details of the defendant’s childhood, invariably terrible; an exploration of the man’s cognitive and emotional limits, in most cases considerable; a portrait gallery of loved ones and friends to frame a picture of a person who deserves to live. Whether the convicted person will be punished is not in question, only how, and it is the prosecution’s task to argue that the balance of justice cannot be restored unless he pays the ultimate price.
When the ringleader of a particularly heinous crime is already dead at the outset of a trial, the criminal-justice system cannot right the scales of justice. By the purported logic of the death penalty, the suicide of a culpable perpetrator ought to be proper enough restitution for the original homicide—the ultimate price is death, and the right person has paid it. But the emotional logic of crime and punishment requires not that someone pay but that someone be made to pay; not just that someone dies but that someone is killed. For Smith, Parker, and Williams, Sennett’s suicide was in that sense especially inopportune. They were the only ones left to be made to pay the ultimate price for Elizabeth Sennett’s murder.
For his role in the murder, a jury sentenced Billy Gray Williams to life without parole. By a vote of 10 to 2, another Alabama jury sentenced John Parker to life without parole as well—but his trial judge nullified that decision and sentenced Parker to death nonetheless, an old-fashioned outrage known as “judicial override.” Parker was executed in 2010.
Kenneth Smith was sentenced to death in 1989, but his sentence was overturned on appeal in 1992. Upon resentencing, a jury gave him life without parole by a vote of 11 to 1. A judge promptly overrode their decision, sentencing Smith to death again in 1996. In 2017 Alabama became the last state to ban the practice of judicial override, but the prohibition didn’t apply retroactively: Smith’s death sentence held.
Now, five years later, he was scheduled to die. If the state had learned from its acknowledged mistakes, it would have selected for its next execution a man whose sentencing didn’t come about through what is now understood to be a miscarriage of justice. Then again, if the state were in the habit of learning from its mistakes, it wouldn’t have sent anyone into its death chamber at all.
This past summer I picked up a call from Joel Zivot, a physician at Emory University Hospital and an expert on lethal injection. That call led me to Birmingham, Alabama. There, I observed the autopsy of Joe Nathan James Jr., a man killed by the Alabama Department of Corrections on July 28. James’s execution had been observably unusual per contemporaneous local media reports: It was delayed by three hours, and then it proceeded without many of the mainstays of judicial killings, including the apparent consciousness of the condemned or any last words.
Alabama was never able to confirm to media that James was conscious at the time of his execution, nor did it supply a convincing account of what had transpired during the long pause prior to James’s lethal injection. To protect executioners’ identity, their work occurs behind drawn curtains, unseen by attorneys for the condemned or by the press. Witnesses see only a man strapped down to a cross-shaped gurney, two catheters inserted into two veins, typically one in each arm. If the executioners succeed in laying those catheters and thus preparing the man for his death, then the only detailed account of what took place behind the curtains is their own.
An ADOC spokesperson said in an email to the media only that the execution team had struggled with “intravenous access” in James’s case and added that it has the right, per its own execution protocol, to set a central line—an intravenous catheter usually inserted in the neck, chest, or groin—if the team is incapable of establishing standard IV access. But, it said, that hadn’t happened.
What had happened is a story told by James’s body, which has become the subject of fierce legal debate. The body I saw that early-August afternoon in Birmingham had clearly been pierced several times by needles on the hands and arms, suggesting a process of trial and error. More troubling were a series of cuts on the left inner arm, near the elbow. Some were shallow and long; one was deep and short, perhaps cut with more conviction. None of them was explicable per ADOC’s execution protocol, which mentions nothing about whatever ghastly and bungled procedure this was—likely an attempted “cutdown” in search of a visible vein. (Alabama has denied performing a cutdown on James and has neglected to offer any other explanation of what happened to the man’s body in their custody.)
ADOC has since insisted that nothing particularly out of the ordinary occurred during James’s execution. Yet Alabama’s own Department of Forensic Sciences recently released an autopsy report that lists, under the subheading “Evidence of Injury,” the very cuts on his arm that, per protocol, had no business being there. James’s autopsy also found that the executioners had pierced his foot as well, echoing the attempted execution of Doyle Hamm, a man Alabama tried and failed to kill in 2018. After looking over the state’s autopsy report and my photographs of James’s body, James Gill, Connecticut’s chief medical examiner and a pathology professor at the Yale School of Medicine, told me in an email that “there are recent, parallel incised wounds (cuts) of the left forearm and antecubital fossa (crux of the elbow). The deepest one is next to a puncture site of the antecubital fossa (the crux of your elbow) … Directly under this area are the large veins of the arm … the antecubital wound is consistent with an attempt at a ‘cut-down’ to gain access to a vein.”
To date, nobody, including the state of Alabama, has produced a clear explanation for how the cuts on James’s arm got there, or who made them. In the absence of an alternative theory, a parsimonious guess would implicate the executioners. The inexpert and haphazard nature of the work was, for legal challenges that later cited James’s case, precisely the point. This wasn’t the meticulously plotted and diabolically perfected torture of a sadist, but the effortful failure of someone who was trying to achieve something somewhat beyond them. As a sinner looking over their endeavors, I identified; as a citizen, I was horrified.
The next execution effort did little to improve my impression. On September 22, ADOC attempted to execute Alan Miller, a man I met shortly after publishing my story about what had happened to James. My requests to serve as a media witness at recent executions had gone unanswered, so Miller asked me to serve as a personal witness, and I readily agreed, convinced that the authors of James’s execution were unlikely to pull off a flawless killing eight weeks later. With their identities still cloaked in secrecy, the executioners pierced Miller’s hands, arms, and foot with needles for somewhere around an hour, searching for veins under his skin with the aid of a cellphone flashlight and blindingly white fluorescent lights overhead before considering a site to puncture on his neck—when a tap came from the other side of an observation window, signaling that the execution had been called off. Someone (this person’s identity remains unknown) had evidently decided that the executioners were unlikely to succeed in getting a needle into Miller’s neck just moments before midnight, when his death warrant would expire. Miller, unlike James, had a lawyer present on prison grounds.
Miller’s attorneys were quick to chase his attempted execution with a series of complaints, one of which persuaded R. Austin Huffaker Jr., a federal judge in Alabama’s Middle District, to rule on November 15—two days before Kenneth Smith’s scheduled execution—that the Alabama Department of Corrections had to provide the names of its executioners to Miller’s attorneys one week hence. If the executioners could be known, then they could be deposed, and their answers under oath could shed some light on why Miller’s attempted execution had transpired the way it did.
And James’s execution, for that matter. This point—that the secrecy of the entire execution procedure, from personnel to practice, renders it nigh impossible to know what exactly keeps going wrong behind the curtain in Alabama’s executions—haunted the end of oral arguments in Smith’s appeal before the Eleventh Circuit. That hearing took place a mere 28 hours before Smith was to be executed. Almost no one knows who the executioners are, or why they can’t seem to kill people without inflicting needless suffering, or how they could be meaningfully sanctioned without being revealed in some way. A panel of three judges on the Eleventh Circuit took the evening before Smith’s scheduled execution to deliberate. The Supreme Court denied a separate petition that night.
Holman Correctional Facility is hidden among the dense marsh forests of lower Alabama, which are nourished by the Escambia River and its tributaries, among the many alluvial waterways that snake toward the Gulf of Mexico as the South fades into the ocean. After nightfall, the prison grounds can be forbiddingly dark, but not on the night Smith was to die.
Instead, Holman was lit by stadium-style floodlights brought in by corrections officials, creating an unusual and dramatic setting for what the state had sworn in court would be a by-the-book execution. Likewise, ADOC brought in patrol teams with canines to police the facility’s perimeter for the duration of the event, as though the greatest risk to seamless executions in Alabama weren’t already inside the death chamber, contemplating their tools.
I arrived at the Wind Creek casino, operated by the Poarch Band of Creek Indians, which happens to be the nearest accommodation to the prison, before dusk and joined Robert Grass, one of Smith’s attorneys, all of whom were in the midst of managing their client’s last appeals. Capital defense attorneys, a wry and ironical breed, refer to the final legal maneuvers prior to a client’s execution as “end-stage capital litigation,” a clinically precise term for a chaotic period in which time both shrinks and dilates, and cases that have idled in courts for years rocket through hearings and rulings at warp speed. Inevitably, a sense of momentum begins to build. As the writer Janet Malcolm once observed, legal papers written in one’s favor are among the most affirming and optimistic documents a person is likely to read in a lifetime, and one could be forgiven, as such papers are passed up to the highest courts of the land, for believing in their promise.
There is time inside that hope, and it spreads open into an intense, immediate present. Smith’s mother, sister, sons, daughter-in-law, and wife, Dee, gathered at another nearby hotel, keeping in close contact with me via cellphone. Although the state liaises with the families of the victims in a capital case, no such provisions are made for the perpetrator’s family, whose only offense is being related to the offender. They’re left alone to patch together news from media reports and the sporadic updates of understandably preoccupied defense attorneys. It is a tense and nerve-racking process that the state makes worse through its resolute indifference, as though the torture of a prisoner’s family were part and parcel of a proper execution. Loved ones wait, and do as they are told. Any text, tweet, or telephone call could mean news of life or death. Adrenaline rises early and remains high.
In those hours, reversals can arrive suddenly. As Grass and I waited in a hotel room, Smith was denied a stay in district court. Smith’s attorneys immediately appealed to the Eleventh Circuit, which had ruled in his favor earlier that day and sent the case back to the district court. At 7:44, despite the fact that Smith’s appeal was pending, the state notified Smith’s attorneys that it was “preparing Mr. Smith for execution,” meaning—as far as we could tell—that it intended to begin attempting access to Smith’s veins, though the poison, we assumed, would not flow until the courts had made their final rulings. Somewhere near 8 o’clock, guards removed Smith from his cell and transported him to the execution chamber, where he was strapped down to the gurney.
I knew what to expect next: a phone call from the secretary of the warden of Holman, who would tell me and Grass to head to the front of the casino, where we would be picked up in an ADOC van and taken to prison grounds, walked through a metal detector, marched into a witness room, and shown an execution. I called Dee about the district court’s denial of Smith’s stay, to make sure she was informed and to ask if she was ready for the next steps. She was straining to maintain her composure against the worsening circumstances. She had been visiting frequently with Smith for the past several days, during the extended visitation hours permitted the week of a prisoner’s execution, and communicating with him via telephone for the past several hours. But then their communication had abruptly stopped. And the next call to come would be—
—a stay from the Eleventh Circuit, which, when announced to Dee and Smith’s mother and children on the other end of the line, elicited shouts and clapping and cries of joy; he could make it now, it seemed, as the clock ticked closer to midnight, and the expiration of Smith’s death warrant. In the hotel room with Grass, emotions were subtler: Though Smith had prevailed in the Eleventh Circuit by convincing the judges that, based on Alabama’s recent history, his lethal injection would present an unconstitutional risk to his Eighth Amendment rights, I strongly suspected that once the case reached the Supreme Court later that night, the six conservative justices would not be so moved. The Court has never in its history outlawed a method of execution. Indeed, in recent years it has issued rulings in Eighth Amendment capital-punishment cases that have raised the bar for receiving mercy progressively higher.
A little before 10:20 that night, the Court vacated Smith’s stay without explanation. (The Court’s three liberal justices dissented.) Now, again, we waited in silence for the call from the prison that would lead us outside to wait for the van that would transport us to Smith’s end. Now, again, all the despair and despondency came. Every trilling slot machine and dinging elevator bell echoed through the casino walls as we waited for the telephone to ring. We said nothing.
Time passed. The boxy digital clock on the hotel nightstand flashed 10:30, 10:36, 10:45. I wondered if the prison had deliberately neglected to contact us. Dee hadn’t heard anything either; she just waited, shattered. Eleven o’clock arrived. I looked at Grass and realized that Alabama was botching another execution.
By that time, Smith told me and Dee in a phone call later that night, he had been strapped to a gurney in Holman’s execution chamber for more than three hours, since 8 o’clock, after his request for a stay had been denied in district court. Although Alabama’s executioners didn’t begin trying to access his veins then, neither did anyone from Holman or the state of Alabama bother to tell Smith about the stay that the Eleventh Circuit instated sometime after the district court’s decision—he simply remained strapped to the gurney intended to be his deathbed, bound and uncertain, as the evening sloped toward midnight. The executioners turned their attention to him only after 10 o’clock, when the Supreme Court vacated the stay, extending them its written invitation.
At that point, Smith recalled, three men entered the chamber and busily set about forcing needles into his flesh, to place their catheters. They were successful once, Smith said, in his left arm. And then, evoking the ordeals of James and Miller, site by site, the men began to fail: piercing Smith’s right hand once, twice, three times; working the needle in and tugging it out, trying a different angle two, three, four times; then moving on to his feet, surveying there, having no success; then switching to his right arm to repeat the process begun on his left. When Smith’s other veins were spent, one of the men moved toward his neck.
Now, Smith told us, one of the executioners donned a clear face mask and threw a surgical covering with a transparent plastic opening over Smith. He asked Smith to turn his head. Smith refused, and a deputy warden from another correctional facility clasped his head and twisted it to the side. Then the executioner pushed a large-gauge surgical needle into Smith’s chest, just beneath his collarbone, searching blindly for his subclavian vein to establish a central line.
Smith could feel the needle stabbing him “like a knife,” and he protested the pain, which the executioners insisted he should not be able to feel, because they had already injected an anesthetic. Whatever they had given him, it did little for the pain and nothing to get them closer to a vein.
“And I kept telling them,” Smith told me and Dee, “call the fucking judge. My case number is 2:22-CV-497. Somebody in this fucking room call the judge or call my lawyer.” (Nobody at ADOC responded to a request for comment about the events of that evening.)
But nobody said a word. Not to Smith, when he was objecting to the acts that would later form the substance of his reinstated legal complaint against the state of Alabama, and not to Smith’s family or his attorneys when state officials decided, sometime around 11:20 p.m., that there was no more point in trying to access Smith’s veins before midnight. Instead, we surmised that Smith had survived his execution from reporters gathered at Holman to serve as press witnesses, who began tweeting that they were being removed from idling prison vans outside the execution chamber and taken back inside the media center.
At midnight, when Smith’s death warrant finally expired, Governor Kay Ivey published a statement expressing her regrets that the state had been unable to kill Smith and her confidence that “attempting it was the right thing to do.” She offered her prayers to Elizabeth Sennett’s children and grandchildren, who, she said, were being “forced to relive their tragic loss,” though she neglected to specify by whom.
The state of Alabama seemed to contend that Smith had foiled his own execution through cynical last-minute legal trickery, at the expense of honest justice. But every prisoner on death row is entitled to such end-stage legal appeals, and every capital defense attorney goes into the hours before an execution prepared to protect their client’s interests to the best of their abilities. None of that was unusual, nor did the time constraints imposed by the legal proceedings actually represent a significant barrier to getting a needle into a second vein: Lateness of the hour aside, executioners still pierced and injected Smith for more than an hour, and called off their efforts with more than 30 minutes left on the clock.
What happened to Smith appears quite similar to what seems to have happened to Joe Nathan James, and what certainly did happen to Alan Miller: For reasons that remain unclear due to the anonymity of the executioners and the secrecy surrounding their qualifications, training, and activities inside the death chamber, the IV team tasked with accessing Smith’s veins once again failed after many attempts. Its efforts this time did not include a cutdown, but culminated with their protocol’s most extreme contingency, a central-line procedure. Such an outcome was what Smith’s own final appeals had predicted; the prisoner himself proved a more accurate assessor of the Alabama Department of Corrections’ capacities than the agency and its lawyers. Then again, the people subject to the capital-punishment regimes of execution states have more cause than anyone to carefully study their captors.
Smith, like Miller, is litigating his botched, aborted execution. He is also recovering from a surreal and terrifying experience that, whatever one makes of it, was not part of his sentence, and indicates both Alabama’s stunning incapacity to perform executions that comport with the Constitution and the state’s bold indifference to any requirement to do so. There is no official involved with Alabama’s capital-punishment edifice who does not realize that the state’s executions and executioners have a serious problem.
Alabama’s failures in the execution chamber are extreme, but not unique. The week Kenneth Smith was to be killed, three other men were executed via lethal injection in the United States: Stephen Barbee, in Texas; Richard Fairchild, in Oklahoma; and Murray Hooper, in Arizona. The IV team in Hooper’s case struggled with venous access and wound up inserting a catheter into his femoral artery; likewise, in Barbee’s case, executioners failed to properly insert needles into the man’s veins for half an hour before setting a central line in his neck.
One can blame the right of the condemned to defend themselves in this nation’s courts, or one can blame them for their unwillingness to die. But the most proximate cause of America’s cruel-and-unusual-punishment problem is the fact that this country still countenances judicial killings, which, while carried out in the name of the American people, dissolve our rights little by little.