Supreme Court Sides With Inmate Who Wants to Be Executed With Nitrogen Gas

Attorney General of Alabama Steve Marshall speaks to members of the press after the oral argument of the Merrill v. Milligan case at the U.S. Supreme Court in Washington, D.C., on Oct. 4, 2022. Alex Wong/Getty Images

The Supreme Court sided on May 15 with a condemned man in Alabama who wants to be executed by nitrogen gas instead of lethal injection, refusing to set aside a stay of execution by lethal injection previously granted by the U.S. Court of Appeals for the 11th Circuit.

Justices Clarence Thomas and Samuel Alito dissented from the Supreme Court’s new unsigned order in Hamm v. Smith, court file 22-580. The court did not explain why it declined to grant the petition filed by the state.

Alabama was prepared to execute Kenneth Eugene Smith, 57, on Nov. 17, 2022, by lethal injection. But state officials struggled to gain adequate access to his veins before the death warrant expired.

Alabama has had problems with its lethal injection procedures. Last year, the state put executions on hold while it reviewed various difficulties it experienced in multiple cases when it tried to carry out lethal injections.

In November 2022, Republican Gov. Kay Ivey said the pause was needed “to make sure that we can successfully deliver that justice and that closure” for victims’ families. In February of this year, Ivey said the review was complete and called for executions to resume.

At the time, Department of Corrections Commissioner John Hamm said his agency added medical personnel and conducted trainings. “In addition, the Department has ordered and obtained new equipment that is now available for future executions,” he said, according to CNN.

Under new rules, courts will allow the governor to establish a time frame for the execution that state officials say “will make it harder for inmates to ‘run out the clock’ with last-minute appeals and requests for stays of execution.”

“As you know, this caused unnecessary deadline pressure for department personnel as courts issued orders late into the night in response to death-row inmates’ last minute legal challenges,” Hamm said.

Smith and an accomplice were convicted in the 1988 murder of Elizabeth Sennett. The two individuals were hired by the victim’s husband who had taken out a sizable insurance policy on his wife.

Kenneth Eugene Smith in an undated photo. Alabama Department of Corrections via AP

Smith claimed the attempted execution by lethal drugs was botched and went to court, arguing that he should be put to death by nitrogen hypoxia. That new method of execution has been approved by the Alabama legislature but protocols for carrying it out have not yet been finalized.

The 11th Circuit sided with Smith in the method-of-execution appeal, concluding he had “plausibly alleged that nitrogen hypoxia was a feasible, readily implemented alternative method of execution.”

Alabama filed a petition with the Supreme Court on Dec. 20, 2022, asking the Supreme Court to review the 11th Circuit decision, which the state said “obviously and inexplicably contravenes this Court’s precedent and warrants summary reversal.”

The petition quoted the Supreme Court’s 2019 decision in Bucklew v. Precythe, which held that an inmate “must show that his proposed alternative method is not just theoretically ‘feasible’ but also ‘readily implemented.’”

Nitrogen hypoxia has never been used in capital punishment in the United States, even though Alabama, Mississippi, and Oklahoma reportedly have laws on the books allowing it.

In the Bucklew case, the Supreme Court voted 5-4 to reject a request from a condemned man in Missouri who asked for a nitrogen hypoxia death instead of lethal injection because he suffered from a rare and painful medical condition that he said made lethal injection problematic, as The Epoch Times reported at the time. The court found that lethal injection does not violate the Eighth Amendment’s ban on cruel and unusual punishment.

The burden, in such a case, is on the death row inmate to “provide the State with a veritable blueprint for carrying the death sentence out” and to “persuade a court that the State could readily use his proposal to execute him.”

An execution method that is unproven and that lacks an established protocol is not one that can be “readily implemented,” the petition stated.

Inmate Russell Bucklew was executed by lethal injection in Missouri in October 2019.

Alabama Attorney General Steve Marshall, a Republican, was not pleased with the Supreme Court’s decision.

Marshall “is disappointed in the denial by the U.S. Supreme Court. The Office is reviewing the decision to determine the next steps,” his communications director, Amanda Priest, told The Epoch Times by email.

In his dissent (pdf), Justice Thomas said he would summarily reverse the 11th Circuit’s holding that Smith had pled a viable Eighth Amendment claim. Justice Alito joined the dissent.

“The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law,” he wrote.

“The Constitution allows capital punishment” and “does not guarantee a prisoner a painless death,” Thomas wrote, quoting the Bucklew decision.

The Epoch Times reached out to Smith’s attorney, Robert M. Grass of Arnold and Porter, but had not received a reply as of press time.