The justices denied Kenneth Eugene Smith's application for a stay of execution and his related petition for review, which asked the court to decide whether Alabama's multiple execution attempts amount to cruel and unusual punishment in violation of the Eighth Amendment. Smith was convicted of the 1988 murder-for-hire of Elizabeth Sennett and is set to die Thursday via nitrogen hypoxia, which has been condemned by the United Nations as inhumane and experimental.
Alabama Solicitor General Edmund G. LaCour Jr. insisted in a Monday response to Smith's filings that nitrogen hypoxia is "perhaps the most humane method of execution ever devised," and that Smith had personally requested it.
Smith, 58, asked the Supreme Court on Jan. 18 to stay his second execution date, arguing his "execution by installments" was unconstitutional. Smith was originally set to die in November 2022, but Alabama Department of Corrections officials called it off after spending almost two hours unsuccessfully attempting to insert a needle to administer the injection. He says the botched execution cause him severe physical and psychological pain.
He argued his petition for review gave the justices an ideal opportunity to address a question that hasn't properly been before the court in more than 75 years: whether failed execution attempts transform subsequent attempts into a "lingering death" in violation of the Eighth Amendment.
In 1947, a 4-1-4 court ruled in Louisiana ex rel. Francis v. Resweber
that a failed execution attempt, during which the state's electric chair malfunctioned, didn't automatically make a second attempt cruel and unusual punishment. But, Smith argued, the case was decided by former Justice Felix Frankfurter's concurrence, which concluded that the Eighth Amendment didn't apply to the case but which said "does not mean "that a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cruelly willful attempt, would not raise different questions."Smith claimed his case is that precise hypothetical situation.
His case would also allow the justices to clarify what a "lingering death" means in the context of aborted executions, a phrase first used by the court in 1890 in In re: Kemmler
, which held that methods of execution that caused instantaneous and painless death were humane and usable. Alabama, however, told the justices in there was no need to review Smith's case because, among other things, his failed execution wasn't "more egregious" than the situation in Resweber.
"Smith says his facts are 'more egregious,' but he wasn't subjected to an electrical current; Alabama attempted to establish an IV and never administered the lethal injection drugs," the state argued. "If a second attempted electrocution is constitutional, so is Smith's execution by nitrogen hypoxia."
Alabama contended the Supreme Court was further prevented from reviewing Smith's case because of jurisdictional issues. Smith didn't request a stay of execution in state courts, so he is foreclosed from asking the nation's high court for one, the state said, and the lower court decision denying Smith post-conviction relief was based purely on state law and is unreviewable by the Supreme Court. A decision on the constitutionality of Smith's execution process would only be an advisory opinion, Alabama argued.
"Smith has no argument that his actual punishment (death) or his actual method (nitrogen hypoxia) is unconstitutional," the state claimed. "Even if being 'jabbed' could be considered a part of Smith's punishment, it was not cruel. There is nothing cruel about stopping the execution (before the drugs were administered) because it could not be completed in time and instead — at Smith's request — using a different method of execution."
Smith was the third prisoner in Alabama in 2022 to be subjected to an hourslong execution, according to court documents.
Joe Nathan James Jr. was executed in July 2022, but only after corrections officials took more than three hours to insert the needle. His family has sued Gov. Kay Ivey, Attorney General Steve Marshall and Corrections Commissioner John Q. Hamm, among others, for violating his Eighth and 14th Amendment rights.
Alan Eugene Miller was set to die in September 2022, but his execution was halted after officials spent 90 minutes trying to insert his IV.
Alabama officials knew about but did nothing to correct the past difficulties with inserting needles for executions before the first attempt on Smith. Those string of failures, Smith argued, showed that the state willfully subjected him to cruel and unusual punishment.
Smith is represented by Robert M. Grass, Jeffrey H. Horowitz, David Kerschner, Ashley Burkett, Angelique A. Ciliberti and Lindsey Staubach of Arnold & Porter Kaye Scholer LLP and Andrew B. Johnson of Bradley Arant Boult Cummings LLP.
Alabama is represented by Edmund G. Lacour Jr., Robert M. Overing, Dylan Mauldin and Richard D. Anderson of the Alabama Attorney General's Office.
The case is Smith v. Alabama, case numbers 23A664 and 23-6517, in the Supreme Court of the United States.
--Editing by Brian Baresch.