BIRMINGHAM, Ala. (WIAT) – A lawyer representing the State of Alabama would not say how long the “execution team” inside Holman Correctional Facility could prod Kenneth Eugene Smith in an attempt to establish vein access before it would violate the U.S. Constitution’s ban on cruel and unusual punishment.

In a court hearing Wednesday, federal appeals court judges questioned Thomas Wilson, a lawyer representing Alabama, about Smith’s allegations that – given Alabama’s recent execution difficulties – attempting to execute him may violate the Eighth Amendment’s ban on cruel and unusual punishment.

“Three hours?” One judge asked Alabama’s lawyer. “Does the protocol specify how long the execution team can attempt to access a vein before moving to a central line? Does it say anything about how long you can do it? Can you do it 6 hours?”

Alabama’s counsel would not provide an amount of time or number of prods that would be inappropriate under Alabama law or the U.S. Constitution.

“The protocol does not specify how long one can search for a vein,” the attorney responded.

Alabama abandoned its last attempt to execute a death row inmate after issues accessing the man’s veins. That night, prison officials did not reveal any difficulties in their attempted execution of Alan Miller, only later providing a limited explanation for the hours-long delay in the commencement of that lethal injection.

Barring further action by the court, Kenneth Eugene Smith is set to be executed at 6 p.m. Thursday.

In 1996, Smith was convicted in a murder-for-hire plot that led to the death of Elizabeth Dorlene Sennett at her home in Colbert County. A jury recommended 11-1 that Smith should receive a sentence of life without parole, but a judge overrode that verdict and sentenced Smith to death.

“If Smith’s trial had occurred today, he would not be eligible for execution,” a federal appeals court wrote in 2021.