Supreme Court Rejects Alabama’s Attempt to Block Challenge to Lethal Injection Protocol


The Supreme Court yesterday rejected the State of Alabama’s argument that death row inmate Kenny Smith should not be allowed to challenge lethal injection as a method of execution.

Last year, Mr. Smith argued that the State’s torturous multi-hour execution of Joe James and its failed attempt to execute Alan Miller showed it could not execute him by lethal injection without inflicting intolerable pain and torture in violation of the Eighth Amendment.

Federal law requires that people challenging a method of execution like lethal injection must identify an alternative execution method that is available in the event that the challenged method is declared unconstitutional.

Mr. Smith identified nitrogen hypoxia, an alternative method adopted by the Alabama legislature in 2018, as a “feasible and readily implemented alternative method execution that would significantly reduce a substantial risk of severe pain.”

On November 17, 2022, the Eleventh Circuit Court of Appeals found that Mr. Smith had pleaded a valid Eighth Amendment challenge to lethal injection and issued a stay of execution.

As part of its opinion, the Eleventh Circuit agreed with Mr. Smith that, as a legal matter, nitrogen hypoxia is an adequate alternative method. That court also granted a stay of execution so that Mr. Smith could challenge Alabama’s lethal injection protocol.

But the Supreme Court vacated the stay over the dissent of three justices and allowed Alabama to proceed with the lethal injection.

That night, Mr. Smith was strapped to a gurney while unnamed state corrections staff poked and prodded him in an effort to access his veins so that toxins could be injected that would kill him for over an hour. After repeatedly failing to access Mr. Smith’s veins to execute him, Alabama officials were forced to call off the execution.

Even after its failed attempt to execute Mr. Smith, the State petitioned the Supreme Court to overturn the Eleventh Circuit’s decision discussing nitrogen hypoxia.

The State argued that nitrogen hypoxia is not a viable method of execution—even though the Alabama legislature authorized nitrogen hypoxia for use as an execution method and even though lawyers for the State previously told other federal courts that a nitrogen hypoxia protocol is close to being finalized.

The State urged the Supreme Court to rule that, because nitrogen hypoxia is not available as an alternative method, Mr. Smith should not be able to challenge Alabama’s lethal injection protocol because he failed to identify an alternative method.

The Supreme Court denied Alabama’s petition over the dissent of Justices Clarence Thomas and Samuel Alito,  rejecting the State’s argument that Mr. Smith should be blocked from challenging the State’s lethal injection protocol.

As a result, Mr. Smith’s case, which is currently pending in the federal district court, will be permitted to proceed.