The United States Supreme Court on Thursday refused to halt Alabama’s second attempt to execute a prisoner who had previously survived an unsuccessful lethal injection. The 6-3 decision saw the Court’s three liberal justices dissenting, voicing a willingness to hear the man’s claims of cruel and unusual punishment.
Kenneth Eugene Smith’s application for a stay of execution and an accompanying request for review were dismissed by the majority of the justices, resulting in his execution later on Thursday evening.
In his petititon, Smith contended that an Eleventh Circuit panel unfairly denied his opportunity to challenge Alabama’s unconventional usage of nitrogen gas. He claimed this method violated the Eighth Amendment. The appellate court supported a federal judge in Alabama’s decision on Wednesday to reject Smith’s request for a preliminary injunction to scrutinize the state’s new execution method.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson voiced their dissatisfaction with the Court’s decision to refuse Smith’s application for stay and certiorari. Justice Sotomayor, in her opinion, stated, “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.”
Justice Kagan, joined by Justice Jackson, wrote a separate dissent expressing her disposition to grant Smith’s petition for review, arguing for an assessment of Alabama’s use of nitrogen gas against the “extremely demanding standard” established by the Supreme Court in 2015’s Glossip v. Gross ruling. In that case, the Court held that a prisoner must demonstrate a “sure or very likely” probability of severe pain to challenge an execution method under the Eighth Amendment.
Already in 1996, Kenneth Eugene Smith was convicted of the 1988 murder-for-hire of Elizabeth Sennett. Despite the jury’s recommendation of a life sentence by an 11-1 majority, the presiding trial judge mandated a death penalty for Smith. Alabama made an unsuccessful initial attempt to execute Smith with lethal injection in November 2022, where the prison staff struggled with the administering process which caused significant distress to Smith.
In response to growing difficulties associated with lethal injection, Alabama approved the use of nitrogen hypoxia as an alternative method for executions in 2018. A similar step has been taken by Oklahoma and Mississippi, though neither state has put this method into practice. No state had previously performed an execution using nitrogen gas. This new form of capital punishment has drawn criticism from the UN as being inhumane and experiment-based.