Supreme Court allows nitrogen gas execution in Alabama against dissents from liberal justices

WASHINGTON (CN) — The Supreme Court declined to block the county’s first nitrogen hypoxia execution on Thursday night against the dissent of the three liberal justices. 

Justice Sonia Sotomayor said the court’s decision to allow Alabama to use an untested execution method amounted to an experiment with a human life.  

“The world is watching,” the Obama appointee wrote. “This court yet again permits Alabama to ‘experiment … with a human life,’ while depriving Smith of ‘meaningful discovery’ on meritorious constitutional claims.” 

Kenneth Eugene Smith is scheduled for his second execution attempt, this time with a method that would deprive him of oxygen. Last year, Smith asked the high court to stop Alabama from carrying out his death sentence via lethal injection, opting instead for nitrogen hypoxia. Smith had asked the court to pause his execution to review how Alabama would implement the new method. 

The majority did not explain why they declined to pause Smith’s execution. 

Sotomayor said the equities favored Smith’s appeal, stating she would have granted his stay request and reversed a lower court ruling. The Obama appointee accused her colleagues of ignoring Smith’s warnings of the unconstitutional risks of pain he could face. 

“Not long ago, this court remarked that ‘the Eighth Amendment’s protection of dignity reflects the nation we have been, the nation we are, and the nation we aspire to be,’” Sotomayor wrote. “This case shows how that protection can be all too fragile.” 

Alabama was forced to put all executions on hold last year after botched attempts at carrying out the punishment. Smith’s first execution attempt was the last the state tried before the pause. 

During Smith’s 2022 execution attempt, he was tied to the table for hours on end while corrections officials poked and prodded him as they sought to establish an IV line. Prison officials have to establish two IV access points to carry out a lethal injection. 

Smith claimed that Alabama’s attempt to execute him with nitrogen hypoxia could lead him to suffocate and choke to death on his own vomit. Sotomayor said she hoped his prediction about his suffering during this execution would not prove to be correct as they were in the prior attempt. 

“With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent,” Sotomayor wrote. 

Justice Elena Kagan — joined by Justice Ketanji Brown Jackson — also wrote a dissenting opinion. Kagan said Alabama did not give Smith an opportunity to properly investigate its new execution protocol. Because of that failure, Kagan and Jackson would have granted the stay to review his case. 

Smith faces execution for the 1988 murder-for-hire killing of a pastor’s wife. A jury voted 11-1 to give Smith a life sentence, but a judge overturned the decision to sentence Smith to death. Judges are no longer allowed to make such determinations. 

Follow @KelseyReichmann

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