WASHINGTON (CN) — An Alabama death row inmate gets to live longer than anticipated by the state, after the Supreme Court on Monday rejected its bid to carry out his execution by lethal injection following a failed attempt last fall.
Kenneth Eugene Smith was found guilty of murdering Elizabeth Dorlene in 1988, after her husband, who was having an affair and consumed by debts, paid him $1,000 to do so.
Smith was sentenced to death and his execution was scheduled for Nov. 17, 2022. But he filed an Eighth Amendment challenge to stop it, arguing the use of lethal injection violated his right to be free from cruel and unusual punishment.
A federal judge initially dismissed Smith’s claims, but they were reinstated by a divided 11th Circuit panel that held Smith had pleaded a viable claim seeking an alternate method of execution: nitrogen hypoxia, also called nitrogen suffocation.
The process forces the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions.
Alabama lawmakers approved legislation in 2018 that authorized nitrogen hypoxia as an alternate execution method, as has Oklahoma and Mississippi, although it has never actually been used to carry out a death sentence.
While the law allows certain inmates to elect nitrogen hypoxia as their execution method, it remains unavailable as Alabama has yet to develop an execution protocol for the practice. According to the state's Department of Corrections, a protocol is expected to be finished later this year.
In its ruling for Smith, the 11th Circuit held that even if “no mechanism to implement the procedure has been finalized,” it is “available” because it has been adopted by Alabama law.
After the state turned to the U.S. Supreme Court, the justices granted its application to dissolve the 11th Circuit’s stay, which had suspended the district court's order. But Alabama was unable to execute Smith before its death warrant expired because prison officials could not establish an IV line, leaving his lawsuit pending in the district court.
In its 7-2 decision without comment Monday, the high court declined to take on the case, turning down a petition from John Hamm, the commissioner of Alabama's Department of Corrections, who claims that the 11th Circuit's ruling goes against Supreme Court precedent.
Hamm argued in his petition for writ of certiorari that the high court has "repeatedly held" that to satisfy an Eighth Amendment claim, a prisoner must prove that their proposed alternative execution method is "not just theoretically 'feasible' but also 'readily implemented.'"
Dissenting from the majority, Justices Clarence Thomas and Samuel Alito agreed with Hamm's argument and called the 11th Circuit's decision "flawed."
"'The Constitution allows capital punishment' and 'does not guarantee a prisoner a painless death,'” Thomas wrote.
He said that just last term, the court "underscored" its finding that a prisoner must provide the state with "a veritable blueprint" for carrying out the requested method of execution in the case of Nance v. Ward.
In 2019, the Supreme Court also denied a petition to hear an almost identical case filed by death row inmate Christopher Price. Contrary to Monday's denial, the justices in that case called the 11th Circuit's precedent about whether nitrogen hypoxia was available and readily implemented "suspect." They wrote that the appeals court's suggestion that the state should bear the burden of showing that a method of execution is unavailable incentives the state to "delay or even refrain from approving even the most human methods of execution."
Thomas highlighted that case in his dissent, writing that Smith's petition offered the court a unique opportunity "to consider and correct Price’s faulty reasoning outside of that posture."
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