Alabama inmate Kenneth Eugene Smith was executed Thursday night by nitrogen hypoxia after the US Supreme Court, in a 6-3 decision, declined to intervene in the state’s second attempt to execute an inmate who had previously survived a botched lethal injection. The court’s three liberal justices expressed their willingness to hear Smith’s claims of cruel and unusual punishment.
Smith’s petition argued that an Eleventh Circuit panel had unjustly denied him the opportunity to challenge Alabama’s unconventional use of nitrogen gas, which he argued violated the Eighth Amendment. The appellate court had upheld a federal judge’s decision in Alabama on Wednesday, which had denied Smith’s request for a preliminary injunction to examine the state’s new execution method.
The court’s decision to deny Smith’s application for stay and certiorari prompted Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson to express dismay with the majority’s decision. Justice Sotomayor concluded her opinion, “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.”
Justice Kagan, along with Justice Jackson, wrote in a separate dissent in which she expressed her inclination to grant Smith’s petition for review. She proposed that this review would assess whether Alabama’s use of nitrogen gas would withstand scrutiny against the “extremely demanding standard” set by the Supreme Court in its 2015 ruling in Glossip v. Gross. There, the court held that a prisoner must demonstrate that there is a “sure or very likely” probability of serious pain occurring to challenge an execution method under the Eighth Amendment.
Smith was 58 years old when he was convicted by an Alabama jury in 1996 for the 1988 murder-for-hire of Elizabeth Sennett. Notably, while the jury recommended a life sentence for Smith by an 11-1 majority, the presiding trial judge chose to override the jury’s decision and sentenced Smith to death, according to Smith’s petition. Alabama initially made an unsuccessful attempt to execute Smith via lethal injection in November 2022. Alabama Department of Corrections officials struggled for nearly two hours to insert an IV for administering the lethal drug, a process that typically should have taken up to six minutes, or a maximum of 30 minutes in extreme cases. Smith maintains that he endured repeated needle insertions during this period, all while experiencing severe pain. At one point, officials even attempted to insert the IV through his neck but were unsuccessful.
In 2018, Alabama approved the use of nitrogen hypoxia as an alternative method for executions due to the growing challenges associated with lethal injection, primarily stemming from a shortage of essential drugs. Similarly, both Oklahoma and Mississippi have authorized the use of nitrogen hypoxia for executions, although neither state has put this method into practice. No state has previously carried out an execution using this nitrogen gas, and the UN has criticized it as both inhumane and experimental.
