Alabama intends to conduct a human experiment of sorts this week, with an untried execution method: nitrogen gas. The subject of Thursday’s impending experiment, Kenneth Smith, wants the Supreme Court to stop it. There’s little reason to think the GOP-appointed majority will.
The state has previously attempted to kill Smith, who was convicted of murdering Elizabeth Sennett in 1988. At issue isn’t his guilt but rather what the Constitution requires — specifically, the Eighth Amendment, which bans cruel and unusual punishment. Noting that Alabama executioners in 2022 failed to kill him by lethal injection — an effort that he says inflicted physical and psychological pain — Smith argues that this second attempt is unconstitutional.
His was the third consecutive execution that Alabama botched or aborted, and the state later agreed not to try a further lethal injection. But his lawyers tell the Supreme Court in his petition that Thursday’s planned execution “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.” The first one featured in a 1947 Supreme Court case from Louisiana, in which a closely divided court rejected a challenge to a second attempted execution by electrocution.
Notably, the justice who cast the deciding vote in that Louisiana case suggested that “a series of abortive attempts at electrocution or even a single, cruelly willful attempt” could be successfully challenged. Smith says that hypothetical scenario is his case. He wants the justices to take up his appeal or else states “will be free to engage in serial execution attempts regardless of the reasons or circumstances of the previous failed attempt — and regardless whether that failed attempt caused (and continues to cause) physical and emotional pain.”
Alabama tells the court a much different story, calling nitrogen hypoxia “perhaps the most humane method of execution ever…
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