Kenneth Eugene Smith, 58, who was convicted of the 1988 murder-for-hire of a pastor's wife, told the justices Thursday in a petition for review that his "execution by installments" violates the Eighth Amendment. The physical and psychological pain caused by Alabama's first execution attempt, exacerbated by the state's threat to try again, amounts to unconstitutionally cruel and unusual punishment, he contends.
In a separate filing Thursday, Smith asked Justice Clarence Thomas to stay his Jan. 25 execution date pending the resolution of his petition. He is scheduled to be executed by nitrogen hypoxia — the first such execution in the country — which has been condemned by the United Nations as inhumane and experimental.
"To be sure, the state and victims have an interest in carrying out timely executions," Smith said in his application. "But a delayed execution is a temporary harm that is ultimately redressable; a premature execution is permanent and irreparable."
Smith argues that his case provides the Supreme Court with an ideal opportunity to address a question that hasn't properly been before it in almost 77 years: whether failed execution attempts transform subsequent attempts into a "lingering death" in violation of the Eighth Amendment.
In 1947, a 4-1-4 court ruled in State of Louisiana ex rel. Francis v. Resweber
that a failed execution attempt, during which the state's electric chair malfunctioned, didn't automatically make a second attempt cruel and unusual punishment. But, Smith argues, the case was decided by former Justice Felix Frankfurter on the basis that the Eighth Amendment didn't apply to states.Justice Frankfurter, however, wrote in his concurring opinion that his conclusion did not mean "that a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cruelly willful attempt, would not raise different questions."
"Seventy-seven years after Resweber was decided, this case now presents the precise hypothetical situation envisioned by Justice Frankfurter: A state insisting on another execution attempt — this time by a novel method never before used by any state or the federal government — after having already subjected Mr. Smith to cruelty and superadded pain during a previous, failed attempt at lethal injection," Smith said.
The case would also allow the justices to clarify what a "lingering death" means in the context of aborted executions, a phrase first used in the court's 1890 decision in In re: Kemmler
, which held that methods of execution that caused instantaneous and painless death were humane and usable.Smith, who was convicted of capital murder and sentenced to death in 1996, was originally set to die in November 2022. Alabama Department of Corrections officials spent almost two hours attempting to insert an IV to administer the lethal injection, but they failed. According to court documents, the procedure should take up to six minutes, or 30 minutes in extreme cases.
For nearly two hours, Smith claims he was jabbed repeatedly with needles and ignored when he complained that the needles were penetrating his muscles and causing severe pain. Officials also tried to insert the IV through his neck at one point, but ultimately couldn't, he said.
Smith filed a petition for post-conviction relief in Alabama state court in May 2023, accusing the Department of Corrections of causing him severe physical and psychological pain, including post-traumatic stress disorder, in relation to his botched execution.
He argued that officials knew but did nothing to correct the difficulties with inserting IVs for lethal injections, claiming similar issues had arisen during the executions of two other inmates in the months leading up to Smith's execution attempt.
Joe Nathan James Jr. was executed in July 2022, but only after corrections officials took more than three hours to insert the IV and administer the lethal injection. His family has sued Alabama Gov. Kay Ivey, Attorney General Steve Marshall and the Alabama Department of Corrections Commissioner John Q. Hamm, among others, for violating James' Eighth and 14th Amendment rights.
Alan Eugene Miller was set to die in September 2022, but his execution was halted after officials spent 90 minutes trying to insert his IV.
"That string of failures — resulting in needless physical and emotional suffering — demonstrates the need for guidance on the meaning of a 'lingering death;' without it, there is no outer limit on a state's ability to engage in protracted executions or even, as is the case here, an execution by installments over the course of more than one year," Smith argues.
But an Alabama trial court dismissed his petition roughly five hours after he filed it, and the Alabama Court of Criminal Appeals affirmed the dismissal in December. The Alabama Supreme Court refused to review the case.
Counsel for Smith didn't immediately respond to requests for comment Friday. Representatives for Alabama could not be reached for comment.
Smith is represented by Robert M. Grass, Jeffrey H. Horowitz, David Kerschner, Ashley Burkett, Angelique A. Ciliberti and Lindsey Staubach of Arnold & Porter Kaye Scholer LLP, and Andrew B. Johnson of Bradley Arant Boult Cummings LLP.
Counsel information for Alabama couldn't be determined.
The case is Smith v. Alabama, case number 23-6517, before the Supreme Court of the United States.
--Editing by Adam LoBelia.
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