U.S. Supreme Court says Alabama death row inmate Kenneth Smith can die by nitrogen hypoxia
The U.S. Supreme Court ruled against the state and in favor of Alabama death row inmate Kenneth Eugene Smith on Monday, allowing him to select nitrogen hypoxia as his method of execution once it is scheduled.
Months before Smith, 57, survived a botched execution last year, he sued the state, alleging that the Alabama Department of Corrections “has no protocol for (executing Smith) without subjecting (Smith) to an intolerable risk of torture, cruelty, or substantial pain.”
His lawsuit explained that these allegations were based on prior executions and execution attempts where the state may have deviated from its execution protocols. Smith cited the mistakes that occurred in two Alabama executions in 2022, those of Joe Nathan James, Jr. and Alan Eugene Miller. James died on the day of his scheduled execution, but Miller did not.
Smith objected to lethal injection, the primary method used in Alabama since 2002, alleging that the method would violate his right to be free of cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. Instead, Smith wanted to be executed via nitrogen hypoxia, a lethal gas that Alabama approved for use in 2018, but has never used in practice.
Nonetheless, the state continued on to schedule Smith's execution by lethal injection for Nov. 17, 2022. That day, the the U.S. 11th Circuit Court ruled that Smith should be allowed to die by his preferred method of nitrogen hypoxia, granting him a stay. Hours later, the U.S. Supreme Court reversed the decision, allowing the execution to continue.
But as the midnight expiration of the death warrant neared, officials could not find a vein and Smith's execution was ultimately called off for the time being.
The Supreme Court's November decision to lift the stay did not address the viability of using lethal gas instead of lethal injection. That is how the court was able to return to the case and make Monday's decision.
The ruling was not unanimous. Justices Clarence Thomas and Samuel Alito dissented, saying they would have ruled in favor of Alabama.
Hadley Hitson covers the rural South for the Montgomery Advertiser and Report for America. She can be reached at hhitson@gannett.com. To support her work, subscribe to the Advertiser or donate to Report for America.
This article originally appeared on Montgomery Advertiser: U.S. Supreme Court sides with Alabama death row inmate on execution method
