Federal district judge concludes condemned has not shown Alabama’s nitrogen gas execution protocol is constitutionally infirm
As reported in this Reuters article, a “federal judge ruled on Wednesday that Alabama can proceed later this month with the first execution by nitrogen gas asphyxiation, saying that the condemned prisoner was unlikely to show the new method amounts to cruel or unusual punishment.” Here is more:
Kenneth Smith, convicted for a murder-for-hire committed in 1988, is scheduled to be executed in Alabama on Jan. 25 using the method, in which execution officials will bind a mask to his face connected to a cylinder of nitrogen intended to deprive him of oxygen….
Judge R. Austin Huffaker of the U.S. District Court in Montgomery, Alabama, ruled against Smith, who sought an injunction halting the execution to allow his litigation to proceed. “Smith is not guaranteed a painless death,” Huffaker wrote in his opinion, citing a U.S. Supreme Court precedent. He wrote that Smith “has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain.”
Smith, 58, is one of two people alive in the U.S. to have survived a judicial execution attempt: Alabama botched his previously scheduled execution by lethal injection in November 2022 when multiple attempts to insert an intravenous line failed. Robert Grass, a lawyer representing Smith, said he planned to appeal the ruling.
The full 48-page opinion is available at this link, and here is part of a key final section of the court’s discussion:
So, it is Smith’s burden to show a substantial likelihood that he will succeed on his Eighth Amendment claim before the court will enjoin his execution to allow him to litigate his challenge, and for good reason. The status quo here is that Smith will be executed by nitrogen hypoxia on January 25, 2024, using the ADOC’s current Protocol. Courts presume, based upon the history and development of capital punishment in this country and the legislative process, that the Defendants do not “seek[] to superadd terror, pain, or disgrace to their executions” unless and until a condemned person can make the requisite showing under Baze and Glossip. Bucklew, 139 S. Ct. at 1124–25 (citing Baze and Glossip).
Considering all the evidence presented and the parties’ arguments, Smith has not met that burden. His evidence and allegations amount to speculation, at best “scientific controvers[y,]” well short “of showing that the method creates an unacceptable risk of pain.” Glossip, 576 U.S. at 882, 884. As in Glossip, Smith’s own experts effectively conceded that they lacked evidence to prove Smith’s case beyond dispute. See id. at 884. Proof of some theoretical risk does not clear Smith’s high hurdle: “[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50. Smith has argued and provided some evidence that the Protocol could theoretically result in some risk of pain if many other events occur, like vomiting or the dislodging of the mask during the execution procedure but — far from providing a feasible, readily implemented alternative nitrogen hypoxia protocol with his list of proposed amendments to the Protocol or his cursory allegations and evidence about the firing squad — he has not shown the current Protocol is sure or very likely to cause substantial risk of serious harm or superadded pain when compared to either of his alleged alternatives, nor that either of his alternative methods would in fact significantly reduce that risk if used instead.
Smith is not guaranteed a painless death. Bucklew, 139 S. Ct. at 1124. On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework. Having failed to show a substantial likelihood of success on the merits, Smith is not entitled to injunctive relief on his Eighth Amendment claim.
Though Smith is surely going to appeal to the Eleventh Circuit and SCOTUS, I doubt he will get a different outcome in the weeks ahead.