The Supreme Court approved a human experiment Thursday in Alabama without bothering to explain why. The GOP-appointed majority’s order simply said, “The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied. The petition for a writ of certiorari is denied.” That was all the state needed to go forward with its untested method of using nitrogen gas to kill Kenneth Smith, who, according to the Associated Press, reportedly appeared conscious for several minutes into the execution and, for at least two minutes, “appeared to shake and writhe on the gurney, sometimes pulling against the restraints.”
The only real words that the high court published on the matter came from the three Democratic appointees, mainly Justice Sonia Sotomayor. She noted that Smith, who was convicted of murdering Elizabeth Sennett in 1988, would be “the first person in this country ever to be executed in this way” and that “his executioners will not intervene and will not remove the mask, even if Smith vomits into it and chokes on his own vomit.” This wasn’t even the state’s first attempt at executing Smith: Alabama botched his 2022 lethal injection after the justices let that one go forward with another unexplained order over Democratic dissent.
“Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” Sotomayor wrote, concluding her dissent with “deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment.” Justices Elena Kagan and Ketanji Brown Jackson added their own brief dissent in which they noted that the state hadn’t even provided Smith all the discovery requested about this new untested protocol.
And what was the majority’s rejoinder to this macabre recitation? Silence — continuing a disturbing theme of unexplained decisions in crucial cases, including ones like this where, as Sotomayor writes, “The world is watching.” Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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