UPDATE (Jan. 24, 2024, 3:18 p.m.): On Wednesday, the Supreme Court rejected Smith’s petition and execution stay application. None of the justices noted any dissent from the order.
Alabama intends to conduct a human experiment of sorts this week, with an untried execution method: nitrogen gas. The subject of Thursday’s impending experiment, Kenneth Smith, wants the Supreme Court to stop it. There’s little reason to think the GOP-appointed majority will.
The state has previously attempted to kill Smith, who was convicted of murdering Elizabeth Sennett in 1988. At issue isn’t his guilt but rather what the Constitution requires — specifically, the Eighth Amendment, which bans cruel and unusual punishment. Noting that Alabama executioners in 2022 failed to kill him by lethal injection — an effort that he says inflicted physical and psychological pain — Smith argues that this second attempt is unconstitutional.
His was the third consecutive execution that Alabama botched or aborted, and the state later agreed not to try a further lethal injection. But his lawyers tell the Supreme Court in his petition that Thursday’s planned execution “will be only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt.” The first one featured in a 1947 Supreme Court case from Louisiana, in which a closely divided court rejected a challenge to a second attempted execution by electrocution.
Notably, the justice who cast the deciding vote in that Louisiana case suggested that “a series of abortive attempts at electrocution or even a single, cruelly willful attempt” could be successfully challenged. Smith says that hypothetical scenario is his case. He wants the justices to take up his appeal or else states “will be free to engage in serial execution attempts regardless of the reasons or circumstances of the previous failed attempt — and regardless whether that failed attempt caused (and continues to cause) physical and emotional pain.”
Alabama tells the court a much different story, calling nitrogen hypoxia “perhaps the most humane method of execution ever devised.” If so, that probably says more about the other methods. At any rate, it’s a difficult claim to make because the method is untested. A doctor who’s president of the American College of Correctional Physicians told The Marshall Project: “I don’t have much to say about how it’s going to work because nobody does. It’s entirely experimental.” But the state’s most convincing argument to the Republican appointees who control the court might not be an argument at all. After proclaiming the superlative humanity of their lethal gas, Alabama’s lawyers write, “Such treatment is much better than Smith gave Elizabeth Sennett nearly thirty-six years ago.” While the remark might carry weight in a barroom or dinner-table conversation, it’s legally irrelevant to the constitutional issue. Still, the state’s lawyers know that justices’ opinions against inmates often begin with a recital of the brutal facts of the cases that landed them on death row, before going on to reject whatever legal claims would prevent their execution. No doubt Alabama is banking on that same treatment at a court that’s skeptical of Eighth Amendment claims to begin with. 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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