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Ala. death row minister says religious liberty lawsuit settled ahead of nitrogen execution

The lawsuit argued that Alabama DOC’s rule mandating a three-foot distance between the reverend and inmate during nitrogen execution was “hostile toward religion”

Holman Correctional Facility

Smith is set to be the first to die using the new method.

Mike Cason | mcason/TNS

By Howard Koplowitz

MONTGOMERY, Ala. — Alabama has settled a lawsuit filed by a Death Row spiritual advisor who claimed the state’s procedures to execute an inmate violate the inmate’s religious liberty, the minister said.

Under the settlement, the Rev. Jeff Hood will be able to anoint Kenneth Smith with oil and share the Holy Eucharist with him and place his hands on Smith’s feet while praying and reading scripture during the execution, the minister said.

A settlement was not yet in federal court records, and the Alabama Department of Corrections could not immediately be reached to confirm a deal between the agency and Hood was in place.

Hood provided with a document indicating the warden for Alabama’s Death Row approved the minister’s and Smith’s plan on Thursday night:

“While I know that this huge victory will not save Kenneth’s life or make the execution chamber any safer for me, I do take some solace in the fact that my efforts have secured his religious liberty and the religious liberty of all who might be executed in the future using nitrogen hypoxia,” Hood said.

“In the coming days, I will continue ministering to Kenneth, work to stop his execution and prepare my family for the very real possibility that I will not return from this execution if it goes forward.”

Hood was referring to the form Alabama made him sign in order to minister to Smith during the execution in which he had to acknowledge the risks Hood faces from nitrogen hypoxia.

The minister said the ADOC’s accommodation shows that the “State of Alabama seems willing to do whatever it takes to execute Kenneth Smith.

“Late yesterday, the State sent word that it had agreed to all of the religious liberty requests contained in my lawsuit,” Hood said.

“If Kenneth is executed, I will be able to share the Eucharist with him before he enters the chamber, anoint his head with oil when I enter the chamber and place my hands on his feet while praying and reading scripture during the execution process. To accommodate such actions, the State has agreed to not place the mask on Kenneth’s face until the anointing of oil is completed.”

The acknowledgment form, along with an ADOC requirement demanding Hood stay three feet away from Smith during the nitrogen execution, were the basis of the lawsuit Hood filed last week in federal court in Montgomery.

The lawsuit said the rule is “hostile toward religion,” and is intended to prevent Hood’s ability to touch Smith and pray with him.

The untested execution method is supposed to work by having an inmate inhale pure nitrogen with no source of oxygen. The nitrogen would lead to an inmate losing consciousness, asphyxiating and dying.

Smith is set to be the first to die using the new method. No inmate in the United States has ever been put to death using nitrogen. Smith is scheduled to be executed sometime between 2 a.m. on Thursday, January 25, and 6 a.m. on Friday, January 26.

Smith was twice convicted by juries for the murder-for-hire of Elizabeth Dorlene Sennett in her home in Colbert County in north Alabama in 1988. Sennett, a pastor’s wife, was beaten and stabbed. Smith, who was hired by the husband, confessed to his role in the crime and has been on death row since 1996.

In August, the Alabama Department of Corrections released a redacted version of its protocol for the new method. It revealed that an inmate would inhale the gas through a tightly fitted gas mask.

According to forms signed by Hood and sent to the department, the prison claimed that oxygen sensors would be installed on the execution chamber walls to ensure safety for any officers, spiritual advisors, or other people in the execution chamber. Those forms, obtained by, state: “However, in the highly unlikely event that the hose supplying breathing gas to the mask were to detach, an area of free-flowing nitrogen gas could result, creating a small area of risk…” The form said that area of risk would be about two feet from the mask.

“Additionally, overpressure could result in a small area of nitrogen gas that displaces the oxygen in the area around the condemned inmate’s face and/or head.”

The lawsuit said Hood hasn’t been given information on how those oxygen sensors are tested, or information on how the execution chamber will be ventilated to ensure nitrogen doesn’t leak from the mask and affect Hood. Gas doesn’t respect boundaries and can’t be expected to only stay within three feet, said the lawsuit.

“However, there is no scientific basis nor was evidence taken during the passage of this legislation or producing the protocol that indicates this ‘safe area’ would make anyone safe,” reads the suit. “Given that nitrogen does not warn of its presence and that it is ambient and can move anywhere in the room, it is unlikely it would stay within the safe area.”

The lawsuit stated there are no safety precautions in place, suggested for workplaces by OSHA or the U.S. Chemical Safety and Hazard Investigation Board, in the nitrogen execution protocol.

The form, titled “Acknowledgment of Spiritual Advisor,” required Hood to agree to remain at least three feet away from the gas mask.

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