“The world is watching.”[i] So wrote Justice Sotomayor in her dissent written and released a mere two days before the execution of Kenneth Eugene Smith by nitrogen hypoxia protocol—a drug that the United States Supreme Court has conceded has never been successful. On June 24, 2024, the United States Supreme Court decided not to intervene and stop the State of Alabama from conducting an execution by way of nitrogen hypoxia protocol. Kenneth Eugene Smith would be the first person in the United States to undergo this novel form of execution. “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 for certiorari is denied.”[ii] These were the only words in response, aside from three dissents, that would change the death penalty indefinitely.
Smith was convicted of murder in 1996, 28 years ago.[iii] Although Smith was convicted by a jury vote of eleven to one, the jury recommended he be sentenced to life imprisonment without the possibility of parole.[iv] However, the trial court judge overrode the jury’s recommendation and sentenced Smith to the maximum punishment–the death penalty.[v] Judicial override is a practice that is now prohibited in Alabama, but the prohibition does not apply to cases retroactively.[vi]
Death by nitrogen hypoxia is the method of suffocating a person by forcing them to inhale nitrogen until they die.[vii] Nitrogen hypoxia started to be viewed as a potential form of execution in 2014.[viii] Though it was claimed to be a peaceful form of execution, the claim was presented with little to no evidence. Nevertheless, the method of execution was thought to be painless if administered correctly. The mask that administers the gas must have an airtight seal so that the person cannot inhale any oxygen and prolong the process of their execution.[ix] In June of 2018, Alabama enacted a statutory amendment that allowed execution by nitrogen hypoxia as an approved form of execution.[x] The law gives inmates a thirty-day window to choose between nitrogen hypoxia or lethal injection.[xi] Alabama, Mississippi, and Oklahoma are the only three states that have approved the use of nitrogen gas for execution.[xii] Unfortunately, this was not the first time the State of Alabama tried to execute Smith. Smith sued in an effort to stop his execution by lethal injection, claiming the foreseeable pain constituted a violation of the Eighth Amendment’s prohibition against “cruel and unusual punishment.”[xiii] Though Smith warned the State of Alabama, the United States District Court for the Middle District of Alabama denied his claims.[xiv] On November 17, 2022, the Alabama Department of Corrections attempted to execute Smith but failed after injecting him numerous times in multiple parts of his body.[xv] As a result of this failed attempt, Smith suffered post-traumatic stress disorder.[xvi]
On November 1, 2022, Smith filed a complaint in the district court, which was amended on November 20 and November 28. His claims asserted that attempting to execute him by way of nitrogen hypoxia would violate his right to be free from cruel and unusual punishment under the Eighth Amendment.[xvii] After his claim was denied, Smith appealed to the Eleventh Circuit Court of Appeals, arguing that he was at risk for vomiting during the execution and that it would result in choking.[xviii] Further, he highlighted the fact that Alabama does not require an airtight seal on the mask.[xix] Without this airtight seal, the executioners risked oxygen seeping into the mask ultimately leading to suffocation, pain, and suffering.[xx] Nevertheless, the court affirmed the denial of Smith’s preliminary injunction and denied the stay request.
Seeking one last chance, Smith petitioned the United States Supreme Court for a writ of certiorari arguing that the Eighth Amendment prohibits nitrogen hypoxia executions.[xxi] The Supreme Court denied Smith’s petition with no opinion, even though it had recognized as recently as 2019 that nitrogen hypoxia has “never been used to carry out an execution and ha[s] no track record of successful use.”[xxii] The Court’s concession of how novel this form of punishment is has raised further questions regarding its constitutionality.
Justice Clarence Thomas, joined by Justice Samuel Alito dissented. Justice Clarence Thomas explained in his dissent that a key element in determining whether a petitioner has a viable Eighth Amendment claim is that they must prove a known alternative to the opposed form of execution.[xxiii] He highlighted the fact that Smith recognizing nitrogen hypoxia as a form of execution is not the same as attempting to plead facts necessary to prove that Alabama “could readily use nitrogen hypoxia to execute him.”[xxiv] He states, “[t]he Eleventh Circuit’s error is not only plain but also serious enough to warrant correction.”[xxv] The Court had a unique and pivotal opportunity to correct and consider former cases regarding this issue, and yet the Court still declined.
Justice Sotomayor, in her dissent to the denial of certiorari, describes this execution as an experiment and suggests Alabama has used Smith as a guinea pig for a new form of execution that has yet to be tested.[xxvi] She ends her dissent by stating, “[t]his case shows how that protection can be all too fragile. Twice now, this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain. The first time, Smith’s predictions came true.”[xxvii]
On January 26, 2024, Smith was executed by way of nitrogen hypoxia. After the nitrogen hypoxia was released through a facial mask, Smith began to shake violently in seizure-like moments and gasp for air. This went on for four minutes.[xxviii] Smith’s convulsing and writhing even caused the gurney to visibly move at least once.[xxix] For a second time, Smith’s prediction came true; he experienced immense pain and suffering from death by way of nitrogen hypoxia. The debate is not whether the death penalty shall stand; it is rather the lengths the states and the Nation will go before it deems such torture of another as cruel and unusual punishment.
[i] Smith v. Hamm, 144 S. Ct. 414, 415 (2024) (J., Sotomayor, dissenting) at 4.
[ii] Smith v. Hamm, 144 S. Ct. 414, 415 (2024).
[iii] See State v. Smith, No. CC-89-1149 (Colbert Cty. Cir. Ct. May 21, 1996), amended sent’g order (Sept. 25, 1997).
[iv]See id.
[v] See id.
[vi] See Ala. Code § 12A-5-47.1.
[vii] See Dana Smith, Nitrogen Execution Method Touted as More ‘Humane’. But Evidence Is Lacking, Sci. Am., (Sept. 23, 2022), https://www.scientificamerican.com/article/new-execution-method-touted-as-more-humane-but-evidence-is-lacking/.
[viii] See id.
[ix] See id.
[x] See Ala. Code § 15-18–82.1(b).
[xi] See id.
[xii] See Emily Czachor, What is nitrogen hypoxia? Alabama’s Kenneth Smith execution proceeds with unprecedented, controversial method, CBS News (Jan. 25, 2024), https://www.cbsnews.com/amp/news/what-is-nitrogen-hypoxia-alabama-execution-kenneth-eugene-smith-death-row-untested-controversial/.
[xiii] Smith v. Comm’r Ala. Dep’t of Corr., No. 22-13781, 2022 WL 17069492, at 1 (11th Cir. Nov. 17, 2022) (per curiam).
[xiv] See id. at 5.
[xv] See Smith v. Hamm, No. 2:22-cv-00497, DE 71, 180–188 (M.D. Ala. July 5, 2023).
[xvi] See Brief for Petitioner at 4, Smith v. Hamm, 144 S. Ct. 414(2024).
[xvii] See id. at 8.
[xviii] See Smith v. Comm’r, Ala. Dep’t of Corr., No. 24-10095, WL 266027, at 3 (11th Cir. Jan. 24, 2024).
[xix] See id. at 4.
[xx] See id. at 6.
[xxi] See Brief for Petitioner at 4, Smith v. Hamm, 144 S. Ct. 414(2024).
[xxii] Bucklew v. Precythe, 139 S. Ct. 112, 1230 (2019) (internal quotation marks and citations omitted).
[xxiii] See Smith v. Hamm, 144 S. Ct. 414, 415 (2024) (J., Thomas dissenting) at 5.
[xxiv] See id. at 4.
[xxv] See id. at 5.
[xxvi] See Smith v. Hamm, 144 S. Ct. 414, 415 (2024) (J., Sotomayor, dissenting) at 4.
[xxvii] Id. at 5.
[xxviii] Nicholas Bogel-Burroughs, A Select Few Witnessed Alabama’s Nitrogen Execution. This is What They Saw, N.Y. Times, (Feb 1. 2024), https://www.nytimes.com/2024/02/01/us/alabama-nitrogen-execution-kenneth-smith-witnesses.html.
[xxix] See id.
