The Supreme Court denied death row inmate Kenneth Eugene Smith’s last chance to avoid a nitrogen gas execution by Alabama on Thursday, with three liberal justices dissenting.
Smith, convicted for a 1988 murder-for-hire killing, is set to be executed by way of nitrogen hypoxia Thursday night. The method involves preventing a person from getting the oxygen they need to continue functioning.
Justices Sonia Sotomayor, Ketanji Brown Jackson and Elena Kagan dissented from the decision. In her dissent, Sotomayor said the method that will be used in Smith’s execution is “untested.”
“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” Sotomayor said. “The world is watching. This Court yet again permits Alabama to ‘experiment … with a human life,’ while depriving Smith of ‘meaningful discovery’ on meritorious constitutional claims.”
Sotomayor said she was dissenting with “deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment.”
Kagan was joined in dissent by Jackson, and echoed Sotomayor, calling the execution method “novel.”
“The State’s protocol was developed only recently, and is even now under revision to prevent Smith from choking on his own vomit,” Kagan said. “The State has declined to provide Smith with all the discovery respecting its protocol which he has requested. And Smith has a well-documented medical condition posing special risks from the State’s newly chosen method of execution.”
The upcoming execution has stirred up controversy. The United Nations Human Rights Office has said it is “alarmed” by the execution and pointed out that the Yellowhammer State does not have a provision for sedation before usage of the method.