SCOTUS conservatives allowed Alabama to suffocate Kenneth Smith to death

The three liberal justices would have granted Smith a stay of execution. Update: Alabama has killed Kenneth Smith.

The conservative majority on the U.S. Supreme Court paved the way Thursday evening for Alabama to employ a never-before-used method of execution — nitrogen gas — in its second attempt at executing Kenneth Eugene Smith.

[Update, 9:40 p.m. ET: State officials said Smith died at 8:25 p.m. CT, according to reporters on site at Holman Correctional Facility, where the state’s executions take place.]

[Update, 11:00 p.m. ET: Initial witness reports raise questions about what the Supreme Court allowed Alabama to do on Thursday night.

According to AL.com, “Witnesses saw Smith struggle as the gas began flowing into the mask that covered his entire face. He began writhing and thrashing for approximately two to four minutes, followed by around five minutes of heavy breathing.”]

The Supreme Court denied Smith’s request for a stay of execution, as well as his underlying petition for the court to hear his appeal. All three Democratic appointees would have granted a stay of execution to Smith, as well as his petition for review of his Eighth Amendment challenge to the state’s new nitrogen gas execution protocol.

Alabama is now free to try its experimental execution method on Smith for the 1988 murder of Elizabeth Dorlene Sennett. The jury in his 1996 trial recommended a sentence of life without the possibility of parole on an 11-to-1 vote, but, under Alabama law at the time, the judge could override that decision. The judge did so, sentencing Smith to death.

In her dissent, Justice Sonia Sotomayor laid out the hard facts of Thursday night:

After detailing the process in the lower courts — covered on Wednesday at Law Dork — she wrote that the lower courts got it wrong.

“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 execution,” Sotomayor wrote.

In a closing section of her dissent that followed that conclusion, Sotomayor described the fundamental failing of the court’s decision.

“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 describe the intense fear and pain [he] experienced during Alabama’s tortuous attempts to execute [him],” she wrote. “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.”

She ended her dissent with a stark note: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.”

Justice Elena Kagan, writing for herself and Justice Ketanji Brown Jackson, dissented as well. They didn’t go as far as Sotomayor, but Kagan wrote that, due to the “exceptional circumstances” of the state’s attempt to use this new method of execution, they would have granted review of the case and granted Smith a stay of execution in the meantime so that the court could consider his Eighth Amendment challenge in regular order.

The majority allowing Alabama to proceed in trying to kill Smith on Thursday night — consisting of at least five of the six Republican appointees — provided no reasoning for their decision.