An Alabama prisoner, who survived a botched lethal injection attempt, is pleading with the justices to prevent the state from attempting to murder him with nitrogen gas.
This week, Alabama plans to carry out a human experiment using nitrogen gas, an unproven technique of execution. Kenneth Smith, the subject of the next experiment on Thursday, wants the Supreme Court to put an end to it. There’s not much evidence to support the GOP-appointed majority’s assertion.
Smith, who was found guilty in 1988 of killing Elizabeth Sennett, has faced attempts at murder in the past from the state. The Constitution’s requirements, particularly the Eighth Amendment’s prohibition on cruel and unusual punishment, are at issue rather than his guilt. Smith claims that the second attempt to execute him by lethal injection in 2022 was unlawful, citing the failure of Alabama executioners to carry out this attempt, which he claims caused him physical and psychological suffering.
His was Alabama’s third botched or attempted execution in a row, and the state subsequently decided not to attempt another lethal injection. The scheduled execution on Thursday, however, “will be only the second time in U.S. history that a state follows through with a second execution attempt after a previous, failed attempt,” his attorneys argue in their petition to the Supreme Court. First, in a 1947 Louisiana Supreme Court case, a narrowly divided court dismissed a challenge to a second attempt at electric execution.
Notably, the judge who decided the case in Louisiana implied that one could successfully challenge “a series of abortive attempts at electrocution or even a single, cruelly willful attempt.” Smith claims that the fictitious situation applies to him. “Will be free to engage in serial execution attempts regardless of the reasons or circumstances of the previous failed attempt—and regardless of whether that failed attempt caused (and continues to cause) physical and emotional pain,” is the threat he makes in his appeal to the court.
Alabama presents a very different picture to the court, referring to nitrogen hypoxia as “possibly the most humane method of execution ever devised.” If so, that likely reveals more about the alternative approaches. In any case, since the procedure hasn’t been tried and tested, it’s challenging to assert. “I don’t have much to say about how it’s going to work because nobody does,” a physician who serves as president of the American College of Correctional Physicians said to The Marshall Project. It is wholly exploratory.
However, the state’s strongest case may not even be an argument at all to the Republican appointees who dominate the court. The attorneys for Alabama write, “Such treatment is much better than Smith gave Elizabeth Sennett nearly thirty-six years ago,” following their declaration of the extraordinary humanity of their deadly gas. Although the comment might be significant in a conversation at a dinner table or bar, it has no bearing on the constitutional question from a legal standpoint.
Nevertheless, the state’s attorneys are aware that judges frequently open their opinions against death row defendants with a recitation of the horrific details of the crimes that brought them there, followed by a rejection of any legal arguments that would have stopped their execution. Alabama is undoubtedly counting on receiving the same treatment from a judge who initially viewed Eighth Amendment concerns with skepticism.
