Kenneth Eugene Smith Vs John Q. Hamm and Others (United States Supreme Court)
Summary: The United States Supreme Court, in Kenneth Eugene Smith Vs John Q. Hamm, Commissioner, Alabama Department of Corrections, et al., denied Kenneth Eugene Smith’s application for a stay of execution and his petition for a writ of certiorari on 25 January 2024. The proceedings concerned Alabama’s proposed execution of Smith through nitrogen hypoxia, a method that had not previously been used for an execution in the United States. The six-page document contains the Supreme Court’s brief operative denial and two dissenting opinions: one by Justice Sonia Sotomayor and another by Justice Elena Kagan, joined by Justice Ketanji Brown Jackson. The concerns expressed in those opinions were the views of the dissenting Justices, not a majority ruling that Alabama’s execution protocol violated the Eighth Amendment.
Justice Sotomayor questioned the decision to proceed with a novel execution method when Alabama had disclosed only a heavily redacted version of its protocol. She observed that the proposed procedure involved placing a nitrogen-supplying mask over Smith’s face and that the State had not tested its fit on him. According to the dissent, the protocol raised particular concerns about the consequences of vomiting during the execution, the possibility of oxygen entering through an imperfect seal, and the risk of prolonged suffering or serious neurological injury. Justice Sotomayor considered these concerns especially significant because Smith had already survived an unsuccessful execution attempt by lethal injection in November 2022.
The dissent recounted that Alabama’s earlier execution attempt had been abandoned after correctional officials repeatedly attempted to establish intravenous access. Justice Sotomayor referred to Smith’s subsequent post-traumatic stress symptoms, including nausea and vomiting, and the expert evidence relied upon to challenge the nitrogen hypoxia protocol. She questioned whether the lower courts had given adequate weight to these circumstances when assessing the risk of cruel and unusual punishment. The dissent also noted that the Eleventh Circuit had identified an error in the District Court’s demand for a detailed blueprint for an alternative method of execution, although the appellate panel ultimately affirmed the denial of preliminary relief.
Applying the stay considerations discussed in Nken v. Holder, 556 U.S. 418 (2009), Justice Sotomayor concluded that Smith had demonstrated a substantial likelihood of success and faced irreparable harm. She would have granted certiorari and summarily reversed the Eleventh Circuit’s decision or, at minimum, stayed the execution. Her opinion also stressed the importance of further discovery concerning the State’s execution procedure. Referring to Barber v. Ivey and Hall v. Florida, she emphasised the constitutional significance of human dignity and judicial scrutiny where a state’s method of execution creates an alleged risk of severe suffering.
In a separate dissent, Justice Kagan, joined by Justice Jackson, questioned whether the stringent standard established in Glossip v. Gross, 576 U.S. 863 (2015), should apply without qualification to an execution method that had never previously been used and about which substantial information remained unavailable. She noted the recently developed protocol, incomplete discovery and Smith’s particular medical circumstances. Justice Kagan would have granted certiorari to examine that issue and stayed the execution while it was considered.
The operative outcome remained the denial of both the stay application and certiorari petition. The dissenting opinions did not alter that disposition, nor did the Supreme Court’s brief denial constitute a detailed majority judgment deciding the constitutionality of nitrogen hypoxia on its merits. The case illustrates the competing approaches to emergency judicial intervention in capital punishment proceedings, particularly where the proposed execution method is new, the available evidence is limited and the applicant raises individual medical risks. The broader subject of alternative execution methods, including nitrogen hypoxia, is also examined in TaxGuru’s discussion of alternative methods of capital punishment.
Cases Discussed
1. Barber v. Ivey (United States Supreme Court); 600 U.S. ___ (2023) — Justice Sotomayor referred to her earlier dissent concerning Alabama’s execution practices, including failed execution attempts and the need for judicial examination of execution procedures.
2. Bucklew v. Precythe (United States Supreme Court); 587 U.S. ___ (2019) — Cited in Justice Sotomayor’s dissent concerning the standard governing Eighth Amendment challenges to execution methods and the assessment of proposed alternatives.
3. Nken v. Holder (United States Supreme Court); 556 U.S. 418 (2009) — Cited regarding the considerations relevant to granting a stay, including likelihood of success, irreparable injury and the public interest.
4. Hall v. Florida (United States Supreme Court); 572 U.S. 701 (2014) — Quoted by Justice Sotomayor concerning the relationship between the Eighth Amendment and human dignity.
5. Glossip v. Gross (United States Supreme Court); 576 U.S. 863 (2015) — Discussed in Justice Kagan’s dissent concerning whether the demanding method-of-execution standard should govern a novel and insufficiently documented procedure.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER
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.
JUSTICE SOTOMAYOR, dissenting from the denial of application for stay and denial of certiorari.
Alabama plans to execute Kenneth Eugene Smith tonight by nitrogen hypoxia. That method is untested. Smith is the first person in this country ever to be executed in this way. The details are hazy because Alabama released its heavily redacted protocol under five months ago. What Smith knows is that he will be strapped to a gurney. 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.
Smith is a surprising candidate to test this novel method. Alabama tried and failed to execute him before. In November 2022, Alabama botched Smith’s execution by lethal injection. It was Alabama’s third failed execution in a row in five months. See Barber v. Ivey, 600 U. S. ___ (2023) (SOTOMAYOR, J., dissenting from denial of application for stay). Smith had warned repeatedly that Alabama would struggle and likely fail to complete its lethal injection in light of a “pattern of the State’s difficulties in establishing venous access.” 2023 WL 4353143, *7 (MD Ala., July 5, 2023). This Court did not listen. It instead vacated a stay of execution without explanation, over three noted dissents. As a result, Smith’s arms were strapped over his head and he watched as his executioners repeatedly stabbed needles into his hands, arms, and collarbone, trying to access his veins. It took an hour and half after this Court vacated the stay before Alabama called off the execution.
Since that day, Smith has suffered from posttraumatic stress. Reliving those hours strapped to the gurney, his medical records confirm worsening bouts of nausea and vomiting over the past few weeks. See Second Supp. Decl. of Katherine Porterfield in No. 2:23–cv–00656 (MD Ala., Jan. 23, 2024), ECF Doc. 87–5, p. 3, ¶¶5–6. Those symptoms have been resistant to prescribed medications. He is therefore likely to vomit during the execution as a combined result of this posttraumatic stress and oxygen deprivation.
Smith asks this Court to stay his execution. He argues that Alabama’s untested execution protocol will likely subject him to an unconstitutional risk of cruel and unusual punishment. According to one of Smith’s experts, “there is a substantial and serious risk that Mr. Smith will experience nausea and vomiting during his execution,” thus “asphyxiating—that is, choking to death—on his own vomit” before he eventually passes out from hypoxia. Id., at 3–4, ¶7. Further, Alabama believes that an air-tight seal is not needed on the mask. Smith therefore has raised the substantial risk that oxygen will infiltrate the mask and lead to a persistent vegetative state, stroke, or suffocation, superadding pain and prolonging Smith’s death. See Application 6.
In denying Smith’s motion for preliminary injunction, the District Court held that Smith failed to make the showing required for a method-of-execution claim under the Eighth Amendment. Such a claim requires that “the risk of pain associated with the State’s method is substantial when compared to a known and available alternative.” Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (internal quotation marks omitted). The District Court found that the risk of substantial harm, including the risk of asphyxiation, was overly speculative because it required “a cascade of unlikely events.” 2024 WL 262867, *2 (MD Ala., Jan. 24, 2024). On the known-and-available-alternative requirement, the District Court faulted Smith for failing to provide “a feasible, readily implemented alternative” with his “list of proposed to amendments to the Protocol.” 2024 WL 116303, *21 (MD Ala., Jan. 10, 2024).
Smith appealed the denial of his motion for preliminary injunction and asked the Eleventh Circuit for a stay of execution. The panel unanimously concluded that the District Court legally erred in requiring Smith to provide a “ ‘veritable blueprint’ ” for an alternative method of execution, a requirement with no basis in this Court’s precedent. No. 24–10095 (CA11, Jan. 24, 2024), p. 22, n. 7 (per curiam). Two judges, however, upheld the District Court’s determination that Smith had failed to establish a risk of substantial harm and concluded that the court’s findings of facts were not clearly erroneous. The panel affirmed the denial of Smith’s preliminary injunction and denied his stay request.1 I view the case like Judge Jill Pryor, who dissented. For the reasons given in her dissent, I would not let this decision stand. See id., at 33–35.
Courts considering a stay must weigh the applicant’s likelihood of success on the merits, potential for irreparable injury, and the public interest. See Nken v. Holder, 556 U. S. 418, 434 (2009). Smith has established a substantial likelihood of success on the merits of his claim challenging Alabama’s undeterred implementation of its heavily redacted, 5-month-old protocol. The equities here, as in nearly all capital cases where the prisoner has shown a reasonable probability of success on the merits, favor Smith. See Bucklew, 587 U. S., at ___, (SOTOMAYOR, J., dissenting). While I would grant the petition for a writ of certiorari and summarily reverse the Eleventh Circuit’s order affirming the denial of Smith’s preliminary-injunction motion, at a minimum, I would grant Smith’s request for a stay of execution.
JUSTICE KAGAN, with whom JUSTICE JACKSON joins, dissenting from the denial of application for stay and denial of certiorari.
As JUSTICE SOTOMAYOR explains, the method Alabama will use to execute Kenneth Eugene Smith—the use of nitrogen hypoxia—is entirely novel. The State’s protocol was developed only recently, and is even now under revision to prevent Smith from choking on his own vomit. The State has declined to provide Smith with all the discovery respecting its protocol which he has requested. And Smith has a well-documented medical condition posing special risks from the State’s newly chosen method of execution.
I would grant Smith’s petition for a writ of certiorari to consider whether, in those exceptional circumstances, the extremely demanding standard this Court established in Glossip v. Gross, 576 U. S. 863 (2015), properly applies. See id., at 877 (requiring a prisoner to show that serious pain is “sure or very likely” to occur). Arguably, that standard can work fairly only when more is capable of being known about an execution method. To allow this Court to address that important issue, I would also grant Smith’s application for a stay of execution.
