Cite as: 601 U. S. ____ (2024) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 23–6562 (23A688)
_________________
KENNETH EUGENE SMITH v. JOHN Q. HAMM,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
[January 25, 2024]
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 of certiorari is de-
nied.
JUSTICE SOTOMAYOR, dissenting from the denial of appli-
cation for stay and denial of certiorari.
Alabama plans to execute Kenneth Eugene Smith tonight
by nitrogen hypoxia. That method is untested. Smith is the
first person in this country ever to be executed in this way.
The details are hazy because Alabama released its heavily
redacted protocol under five months ago. What Smith
knows is that he will be strapped to a gurney. He will wear
a nitrogen-supplying, off-the-rack mask for which the State
has not fitted him or even tried on him. Once the nitrogen
is flowing into the mask, his executioners will not intervene
and will not remove the mask, even if Smith vomits into it
and chokes on his own vomit.
Smith is a surprising candidate to test this novel method.
Alabama tried and failed to execute him before. In Novem-
ber 2022, Alabama botched Smith’s execution by lethal in-
jection. It was Alabama’s third failed execution in a row in
five months. See Barber v. Ivey, 600 U. S. ___ (2023)
(SOTOMAYOR, J., dissenting from denial of application for
2 SMITH v. HAMM
SOTOMAYOR, J., dissenting
stay). Smith had warned repeatedly that Alabama would
struggle and likely fail to complete its lethal injection in
light of a “pattern of the State’s difficulties in establishing
venous access.” 2023 WL 4353143, *7 (MD Ala., July 5,
2023). This Court did not listen. It instead vacated a stay
of execution without explanation, over three noted dissents.
As a result, Smith’s arms were strapped over his head and
he watched as his executioners repeatedly stabbed needles
into his hands, arms, and collarbone, trying to access his
veins. It took an hour and half after this Court vacated the
stay before Alabama called off the execution.
Since that day, Smith has suffered from posttraumatic
stress. Reliving those hours strapped to the gurney, his
medical records confirm worsening bouts of nausea and
vomiting over the past few weeks. See Second Supp. Decl.
of Katherine Porterfield in No. 2:23–cv–00656 (MD Ala.,
Jan. 23, 2024), ECF Doc. 87–5, p. 3, ¶¶5–6. Those symp-
toms have been resistant to prescribed medications. He is
therefore likely to vomit during the execution as a combined
result of this posttraumatic stress and oxygen deprivation.
Smith asks this Court to stay his execution. He argues
that Alabama’s untested execution protocol will likely sub-
ject him to an unconstitutional risk of cruel and unusual
punishment. According to one of Smith’s experts, “there is
a substantial and serious risk that Mr. Smith will experi-
ence nausea and vomiting during his execution,” thus “as-
phyxiating—that is, choking to death—on his own vomit”
before he eventually passes out from hypoxia. Id., at 3–4,
¶7. Further, Alabama believes that an air-tight seal is not
needed on the mask. Smith therefore has raised the sub-
stantial risk that oxygen will infiltrate the mask and lead
to a persistent vegetative state, stroke, or suffocation, su-
peradding pain and prolonging Smith’s death. See Applica-
tion 6.
In denying Smith’s motion for preliminary injunction, the
District Court held that Smith failed to make the showing
Cite as: 601 U. S. ____ (2024) 3
SOTOMAYOR, J., dissenting
required for a method-of-execution claim under the Eighth
Amendment. Such a claim requires that “the risk of pain
associated with the State’s method is substantial when
compared to a known and available alternative.” Bucklew
v. Precythe, 587 U. S. ___, ___ (2019) (internal quotation
marks omitted). The District Court found that the risk of
substantial harm, including the risk of asphyxiation, was
overly speculative because it required “a cascade of unlikely
events.” 2024 WL 262867, *2 (MD Ala., Jan. 24, 2024). On
the known-and-available-alternative requirement, the Dis-
trict Court faulted Smith for failing to provide “a feasible,
readily implemented alternative” with his “list of proposed
to amendments to the Protocol.” 2024 WL 116303, *21 (MD
Ala., Jan. 10, 2024).
Smith appealed the denial of his motion for preliminary
injunction and asked the Eleventh Circuit for a stay of exe-
cution. The panel unanimously concluded that the District
Court legally erred in requiring Smith to provide a “ ‘verita-
ble blueprint’ ” for an alternative method of execution, a re-
quirement with no basis in this Court’s precedent. No. 24–
10095 (CA11, Jan. 24, 2024), p. 22, n. 7 (per curiam). Two
judges, however, upheld the District Court’s determination
that Smith had failed to establish a risk of substantial harm
and concluded that the court’s findings of facts were not
clearly erroneous. The panel affirmed the denial of Smith’s
preliminary injunction and denied his stay request.1 I view
the case like Judge Jill Pryor, who dissented. For the rea-
sons given in her dissent, I would not let this decision stand.
See id., at 33–35.
Courts considering a stay must weigh the applicant’s
likelihood of success on the merits, potential for irreparable
injury, and the public interest. See Nken v. Holder, 556
U. S. 418, 434 (2009). Smith has established a substantial
——————
1 Judge Wilson wrote a concurring opinion expressing his concerns
with Alabama’s untested plan to execute Smith.
4 SMITH v. HAMM
SOTOMAYOR, J., dissenting
likelihood of success on the merits of his claim challenging
Alabama’s undeterred implementation of its heavily re-
dacted, 5-month-old protocol. The equities here, as in
nearly all capital cases where the prisoner has shown a rea-
sonable probability of success on the merits, favor Smith.
See Bucklew, 587 U. S., at ___, (SOTOMAYOR, J., dissenting).
While I would grant the petition for a writ of certiorari and
summarily reverse the Eleventh Circuit’s order affirming
the denial of Smith’s preliminary-injunction motion, at a
minimum, I would grant Smith’s request for a stay of exe-
cution.
* * *
Having failed to kill Smith on its first attempt, Alabama
has selected him as its “guinea pig” to test a method of exe-
cution never attempted before. Barber, 600 U. S., at ___.
The world is watching.2 This Court yet again permits Ala-
bama to “experiment . . . with a human life,” while depriv-
ing Smith of “meaningful discovery” on meritorious consti-
tutional claims. Id., at ___. This time around, Alabama has
adopted a new protocol concerning a never-before-used
method of execution. Consistent with Alabama’s “familiar
veil of secrecy over its capital punishment procedures,” it
has released only a “heavily redacted” version of that proto-
col. 2024 WL 116303, *3. Smith should be allowed to com-
plete discovery and litigate the merits of his claims chal-
lenging this new protocol in the ordinary course. That
information is important not only to Smith, who has an ex-
tra reason to fear the gurney, but to anyone the State seeks
——————
2 See, e.g., US: Alarm Over Imminent Execution in Alabama, United
Nations (Jan. 16, 2024), https://www.ohchr.org/en/press-briefing-notes/
2024/01/us-alarm-over-imminent-execution-alabama; United States: UN
Experts Alarmed at Prospect of First-Ever Untested Execution by Nitro-
gen Hypoxia in Alabama, United Nations (Jan. 3, 2024), https://www.
ohchr.org / en / press-releases /2024/01/united-states-un-experts-alarmed-
prospect-first-ever-untested-execution.
Cite as: 601 U. S. ____ (2024) 5
SOTOMAYOR, J., dissenting
to execute after him using this novel method.
Not long ago, this Court remarked that “[t]he Eighth
Amendment’s protection of dignity reflects the Nation we
have been, the Nation we are, and the Nation we aspire to
be.” Hall v. Florida, 572 U. S. 701, 708 (2014). This 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. He “survived to de-
scribe the intense fear and pain [he] experienced during Al-
abama’s tortuous attempts to execute [him].” Barber, 600
U. S., at ___ (SOTOMAYOR, J., dissenting from denial of ap-
plication for stay). This time, he predicts that Alabama’s
protocol will cause him to suffocate and choke to death on
his own vomit. I sincerely hope that he is not proven correct
a second time.
With deep sadness, but commitment to the Eighth
Amendment’s protection against cruel and unusual punish-
ment, I respectfully dissent.
Cite as: 601 U. S. ____ (2024) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 23–6562 (23A688)
_________________
KENNETH EUGENE SMITH v. JOHN Q. HAMM,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
[January 25, 2024]
JUSTICE KAGAN, with whom JUSTICE JACKSON joins, dis-
senting from the denial of application for stay and denial of
certiorari.
As JUSTICE SOTOMAYOR explains, the method Alabama
will use to execute Kenneth Eugene Smith—the use of ni-
trogen hypoxia—is entirely novel. The State’s protocol was
developed only recently, and is even now under revision to
prevent Smith from choking on his own vomit. The State
has declined to provide Smith with all the discovery re-
specting its protocol which he has requested. And Smith
has a well-documented medical condition posing special
risks from the State’s newly chosen method of execution.
I would grant Smith’s petition for a writ of certiorari to
consider whether, in those exceptional circumstances, the
extremely demanding standard this Court established in
Glossip v. Gross, 576 U. S. 863 (2015), properly applies. See
id., at 877 (requiring a prisoner to show that serious pain is
“sure or very likely” to occur). Arguably, that standard can
work fairly only when more is capable of being known about
an execution method. To allow this Court to address that
important issue, I would also grant Smith’s application for
a stay of execution.