Clarence Thomas dissents on nitrogen hypoxia use

In a dissent handed down Monday, embattled Supreme Court Justice Clarence Thomas chastised his fellow justices for bypassing a golden opportunity to correct an error in death penalty law that is holding up executions.

As has often been the case of late, Justice Samuel Alito joined Thomas’s dissent.

A new method of execution

Kenneth Eugene Smith and an accomplice brutally stabbed and murdered Elizabeth Dorlene Sennett, a 45-year-old minister’s wife and grandmother, in 1988. Smith was sentenced to death for the murder, which had been a contract killing for $1,000. Alabama scheduled Smith’s execution for November 17, 2022, and Smith raised an Eighth Amendment challenge to the method of execution, which was meant to be lethal injection. In his appeal, Smith argued that an alternative method of execution — inhalation of pure nitrogen, known as “nitrogen hypoxia” — would be less painful.

Alabama’s 2018 statute authorized execution by nitrogen hypoxia for inmates who elected to use that method. However, the state has never actually used nitrogen hypoxia, nor has it even finalized protocols for using the chemical in an execution.

Smith’s lawsuit raising the cruelty of lethal injection was not based on mere conjecture. Rather, Smith argued that Alabama previously botched executions of other inmates, particularly at the point of accessing veins to insert intravenous lines.

The district court sided with Alabama and kept Smith’s scheduled execution date, but the U.S. Court of Appeals for the 11th Circuit reversed later the same day, pausing Smith’s execution altogether. The 11th Circuit reasoned that because nitrogen hypoxia is on Alabama’s books, it is considered a “feasible and readily implemented alternative” that must be considered when an inmate brings an Eighth Amendment claim.

Alabama appealed to the Supreme Court, which granted review and dissolved the stay. However, the timing meant that Smith’s death warrant expired, leaving his appeal pending in the district court. The Supreme Court denied further review on Monday, which means that the 11th Circuit’s ruling stands and — at least for now — halts Smith’s death sentence.

‘Simply irrelevant’

Smith argued that he should be entitled to execution by nitrogen hypoxia, given that the method was specifically authorized by Alabama statute. By contrast, Smith argued, the use of lethal injection is unnecessarily cruel.

The legal issue with downgrading lethal injection to a disfavored “alternative” to nitrogen hypoxia is that hypoxia is an entirely novel method of execution. Because hypoxia has not been used and cannot be humanely tested, Thomas and Alito said it should not be considered the kind of viable alternative that would support an Eighth Amendment challenge to lethal injection.

Thomas called Alabama’s statutory authorization of nitrogen hypoxia “simply irrelevant” to the constitutional question of whether the Eight Amendment requires that the method be considered “available.” Thomas reduced the statute’s authorization and “alternative method in other executions that are to take place sometime in the indefinite future.” Smith should have lost his claim without more, said Thomas.

Thomas, ordinarily a stalwart champion of state authority, reminded readers that the Eighth Amendment “is the supreme law of the land,” and assessments of which execution methods pass constitutional muster “can’t be controlled by the State’s choice of which methods to authorize in its statutes.”