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Kenneth Eugene Smith

Complaint to the UN on behalf of Mr Kenneth Eugene Smith.

Professor Jon Yorke collaborated for providing information on a death penalty case to the United Nations with Dr Joel Zivot, Associate Professor of Anesthesiology and Surgery at Emory University School of Medicine in Atlanta.

On 23 November 2023, Professor Yorke and Dr Zivot submitted a Complaint on behalf of Mr Kenneth Eugene Smith in custody under sentence of death in the Alabama Department of Corrections, to Dr Morris Tidball-Binz, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

Mr Smith was sentenced to death in 1989 for the murder of Mrs Elizabeth Sennet. The prosecution withheld exculpatory evidence which would have demonstrated he had no knowledge his accomplice, John Parker, intended to kill Mrs Sennett. The judge failed to properly instruct the jury on the distinction between a capital and non-capital offence, and even though in a 11-1 vote the jury recommended life imprisonment the judge imposed the death penalty. By all reasonable standards Kenneth should not have been sentenced to death under state law, and federal law should have been applied to set-aside his death sentence.

In 2010 Alabama executed John Parker by lethal injection for the murder. Then on 22 November 2023, the state tried to execute Kenneth. The process was botched as during being strapped to the gurney for 4-hours and receiving numerous puncture wounds over his arms, the state was unable to locate an appropriate vein. He suffered spinal injuries after being tipped upside-down and he continues to suffer from the physical and psychological effects of this torture.

Dr Morris Tidball-Binz evaluated the human rights violations in the case under the mandate of the UN Special Procedure on extrajudicial, summary, and arbitrary executions.[1] Four UN Special Rapporteurs jointly-authored a Communication and in their Press Release on 3 January 2024 stated that execution by nitrogen gas inhalation may result ‘in a painful and humiliating death,’ and ‘will likely violate the prohibition on torture and other cruel, inhuman or degrading punishment.’[2] On 16 January 2024, Ravina Shamdasani the Spokesperson for the UN High Commissioner for Human Rights sounded the global ‘alarm’ over this new method of execution as it raises ‘serious concerns’ of human rights violations.[3]

The Complaint submitted by Professor Yorke and Dr Zivot argued that Mr Smith’s ICCPR rights had been violated by Alabama, including:

  1. the right to an effective remedy (ICCPR article 2)
  2. the right to life (article 6)
  3. the prohibition of torture and inhumane punishment (article 7)
  4. the protection of the humanity and human dignity of those deprived of their liberty (article 10)
  5. the right to a fair trial (article 14)
  6. the prohibition against an arbitrary or unlawful interference with his privacy, family, and home (article 17).

Read the complaint.

In expressing the potential human rights violations which Kenneth Smith would be subjected to, the UN Special Rapporeturs’s Communication to the US government stated:

We would, thus, wish to express our utmost concern for the resumption of executions at both federal and State levels, which firmly contradict global trends toward the abolition of the death penalty.

Read the UN Special Rapporteur's Communication.

The US government submitted the Communication to the authorities in Alabama and stated:

Thank you for your December 14 letter regarding the State of Alabama’s scheduled execution of Mr. Kenneth Eugene Smith. The United States is governed by a complex federalist system, where the federal government and U.S. state governments share power and jurisdiction over criminal justice, including prosecutions and sentences. Accordingly, requests for information regarding cases under the jurisdiction of U.S. states or laws of U.S. states are referred to the state in question, in this case Alabama. We have passed your request for information to the relevant state authorities.

Unfortunately, the State of Alabama did not send a response to the United Nations and carried out their execution of Kenneth Smith. Read the letter the UN received from The Permanent Mission of the United Sates of America to the United Nations and Other International Organizations, dated 19th January 2024.

Public Event: Nitrogen Gas Inhalation: Legal? Ethical? Torture?

With the UK charity, Amicus, Professor Yorke organised an expert panel discussion on Kennth Smith’s case which was hosted by the London law firm, Bryan Cave Leighton Paisner (BCLP). A week before Kenneth was executed the panel discussed the human rights issues in his case, the science of executions by forced nitrogen gas inhalation, the role of the UN in communicating with the US government on the case, a journalist’s perspective on reporting on the death penalty, and a Coroner’s review of the evidence.

The panel speakers were:

  • Professor Jon Yorke - Director, Centre for Human Rights, BCU Law School
  • Dr Joel Zivot - Associate Professor of Anesthesiology and Surgery, Emory University School of Medicine
  • Morris Tidball-Binz - UN Special Rapporteur on Extrajudicial Summary or Arbitrary Executions
  • Ed Pilkington - Chief Reporter, Guardian US
  • Barnaby Hone - UK Barrister and Coroner

Watch Nitrogen Gas Inhalation: Legal? Ethical? Torture? - A Panel Event held on 17th January.

[1] https://www.ohchr.org/en/special-procedures/sr-executions

[2] https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-alarmed-prospect-first-ever-untested-execution

[3] https://www.ohchr.org/en/press-briefing-notes/2024/01/us-alarm-over-imminent-execution-alabama