The U.S. Supreme Court did not intervene to stop the nation’s first execution by nitrogen hypoxia — a move that all three justices of the court’s liberal wing opposed.
“With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent,” wrote Justice Sonia Sotomayor in a dissent issued Thursday afternoon regarding the then-pending execution of Kenneth Eugene Smith. Smith, 58, was put to death Thursday night.
As Law&Crime previously reported, Smith has been on death row since 1996 for his role in a gory murder-for-hire plot that left a minister’s wife dead after a vicious beating and repeated stabbing inside her Alabama home in 1988.
After years of legal wrangling and a failed execution attempt in November 2022, Smith died by capital punishment on Thursday night, after Justice Clarence Thomas rejected Smith’s final appeal in a two-sentence denial earlier that day.
“The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied,” the order said. “The petition for a writ of certiorari is denied.”
Sotomayor’s disdain for this rejection — and Alabama’s commitment to using nitrogen hypoxia to kill Smith — was apparent.
“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote in her dissent. “The world is watching.”
Calling the nitrogen hypoxia method “untested” and noting that Alabama only released its “heavily redacted protocol under five months ago,” Sotomayor described the way Smith would experience his death in stark terms.
“What Smith knows is that he will be strapped to a gurney,” she wrote. “He will wear a nitrogen-supplying, off-the-rack mask for which the State has not fitted him or even tried on him. Once the nitrogen is flowing into the mask, his executioners will not intervene and will not remove the mask, even if Smith vomits into it and chokes on his own vomit.”
According to The Associated Press, Smith’s execution took around 22 minutes, and he was pronounced dead at 8:25 p.m. Smith was apparently conscious for several minutes, and The Associated Press described him as shaking and writhing on the gurney for at least two minutes, at times pulling against his restraints. His death by nitrogen hypoxia marked the first time that a new execution method was used since lethal injection was introduced in 1982.
Sotomayor said that Smith had valid legal challenges to the execution method, and admonished her fellow justices for “again” allowing Alabama to “‘experiment . . . with a human life,’ while depriving Smith of ‘meaningful discovery’ on meritorious constitutional claims.”
According to Sotomayor, allowing Smith to complete discovery into nitrogen hypoxia is valuable for future death row inmates, in addition to Smith.
“That information is important not only to Smith, who has an extra reason to fear the gurney, but to anyone the State seeks to execute after him using this novel method,” she wrote.
In her dissent, Sotomayor appeared to mourn a version of the Supreme Court that she described as having relatively recently valued Eighth Amendment protections.
“Not long ago, this Court remarked that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be,'” she wrote (citations omitted). “This case shows how that protection can be all too fragile.”
Her colleagues on the bench, she said, have “ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain,” and recalled that he has already “survived to describe the intense fear and pain [he] experienced during Alabama’s tortuous attempts to execute [him].”
“This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit,” she continued. “I sincerely hope that he is not proven correct a second time.”
Justice Elena Kagan, joined by Justice Ketanji Brown Jackson, issued a separate dissent emphasizing the “novel” use of the nitrogen hypoxia method.
“The State’s protocol was developed only recently, and is even now under revision to prevent Smith from choking on his own vomit,” Kagan wrote. She said that Alabama “declined to provide Smith with all the discovery respecting its protocol which he has requested,” and added that he “has a well-documented medical condition posing special risks” from the chosen method of execution.
Kagan wrote that in 2015, the Supreme Court set an “extremely demanding standard” for showing a potential violation of the Eighth Amendment protection against cruel and unusual punishment — specifically, someone seeking an alternative method of execution must show that serious pain is “sure of very likely” to occur.
“Arguably, that standard can work fairly only when more is capable of being known about an execution method,” Kagan wrote. “To allow this Court to address that important issue, I would also grant Smith’s application for a stay of execution.”
The first attempt to execute Smith via lethal injection in November 2022 failed after intravenous lines needed for the procedure could not be connected to him properly and the clock ran out on the warrant to execute him. The state moved ahead with plans to execute him again, but that prompted a lawsuit from Smith in which he requested death by nitrogen hypoxia, for which protocols were incomplete at that point.
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