Kenneth Smith Redux

Try, Try Again? 

The latest Order List brought a grant regarding the ever-continuing problems of executing Richard Glossip.

The other thing they are handling (a stay request submitted last week) involves the first scheduled execution for 2024. Kenneth Smith is a retry. I talked about the first attempt in November 2022 here. I won't go over all his details. But, this one has been going on for over thirty years. 

The execution is already questionable because an 11-1 jury vote for life was overridden (as allowed at the time) by the judge. Nonetheless, the Supreme Court has not shown any indication they find this constitutionally problematic. 

The seminal issue here is the use of nitrogen gas (after it has been allowed by legislation for approaching a decade in one or more states). After Alabama botched trying to execute him with lethal chemicals (they now have more time to carry out a death warrant, to help deal with tardy SCOTUS final review), it agreed not to use that method.

So, he would be the first inmate to be executed by nitrogen gas. Technically, the state has the power to execute him some other way, though generally needs his permission. 

A challenge to lethal injection under the Supreme Court's precedents had to include Kenneth Smith showing there was an alternative available. He offered nitrogen gas. This would be "consent" for that purpose. So I would suppose. 

There was some argument (feels familiar) that nitrogen gas was a solution to the cruel and unusual methods concern. Nonetheless (ditto), especially since this was never used, doubts are now raised (Prof. Lain) about the method.

The Glossip opinion (2015) was but one example of the Supreme Court (even with Kennedy) not being sympathetic about challenging the method of execution. (A few cases upheld allowing people to try to challenge it.) The Supreme Court has never blocked an execution on that grounds. 

Methods covered: firing squad, electrocution, cyanide gas, hanging, and lethal injection. They either upheld them or found a means to avoid deciding. So, a direct challenge was iffy here. But, the death bar is nothing if flexible.

Alabama had trouble executing people with lethal injection. Shades of Oklahoma (now playing catch-up), they did a review. They expanded the time (thirty hours) to carry out a death warrant. The Supreme Court sometimes leaves things to the last minute. 

It is unclear, however, how much the state did to ensure that executions would go on correctly. An unused novel method does not lead to much assurance. Kenneth Smith has a specific concern since they already botched the first attempt. It wasn't the first time they botched things too.

(This is not just a blanket rejection of the death penalty. A state like Texas manages to avoid as many problems.)  

The Supreme Court (5-4 with Frankfurter distraught but going with judicial restraint) allowed a second attempt back in the 1940s. But, this case (putting aside the evolving standards of decency) is arguably worse. The botch was not a one-off. [See here.]

Should the state get to "try, try again" in this case? 

SCOTUS Decides

There were two steps. First, the Supreme Court (without comment from anyone) denied the challenge regarding the unconstitutionality of Alabama trying to execute a second time given the overall facts. I think this warranted at least some comment but there you go.

The second challenge focused on the novel use of nitrogen gas without proper safeguards. The majority again anonymously without comment rejected this request. Nonetheless, the liberals in dissents by Sotomayor (alone) and Kagan (with Jackson) did explain themselves.

Sotomayor's dissent is a passionate one on the continuing horrors and tragic nature of the situation. She cited the failed attempt to execute him. The other case would have addressed the special case of a need to try again. ("It was Alabama’s third failed execution in a row in five months.")

Kagan provides a briefer dissent arguing the novelty of the situation as applied to Smith (including his personal concern about vomiting, which as Sotomayor's dissent notes is related to his PTSD arising from the first failed attempt) warrants a stay and review. 

The End

The NYT provided a useful summary of the people involved in the contract killing ($3000, which was split three ways):

Mr. Sennett killed himself shortly after the murder of his wife.

[A link notes: "Charles Sennett was a minister in financial trouble and weary of his marriage to his recently insured wife."]

One of the other men involved in the murder, John Forrest Parker, was executed by lethal injection in 2010, and another, Billy Gray Williams, was sentenced to life in prison and died behind bars in 2020.

Williams subcontracted the murder to Parker (the jury's life sentence also overruled) and Smith. Smith was executed. A $1000 each for a life isn't much even thirty-five years ago.

It does provide a footnote in capital punishment history. The first execution by nitrogen gas. Was it more humane? Hard to say. One witness:

Witnesses saw Smith struggle as the gas began flowing into the mask that covered his entire face. He began writhing and thrashing between two and four minutes and was followed by around five minutes of heavy breathing.

I don't think the process was due. The state repeatedly had problems executing people. They were unable to execute Kenneth Smith. They decided to try again, agreeing to use a new, untried method. The details of the protocol were unclear. To quote Justice Blackmun, they continue to tinker with the machinery of death.

It continues to leave a lot to be desired. 

ETA: During the oral argument for Glossip v. Gross, Justice Alito cited legal euthanasia laws as an example of how it was possible to kill people humanely. 

The problem is that executions are not the same thing as voluntary euthanasia. Also, the procedures used are different:

Nitschke said the right-to-die movement long ago moved away from using masks such as the one in Alabama, instead favoring methods such as hoods, specially designed bags, and pods. Another key difference, he stressed, is that people are calm and cooperative in their assisted suicide, while a prisoner is anxiously awaiting an execution against his will.

Executions are also not like euthansizing pets. Overall, it is not euthanasia. 

Biden Administration: A question arose at the daily press briefing related to the execution.

Q: Last night, Alabama executed a man with nitrogen gas, which is the first time that that new method has been used.  I’m wondering if the White House has any reaction to that. 

MS. JEAN-PIERRE:  Yeah, we do.  The reports of Kenneth Smith and the — and his death last night, obviously, is troubling.  It is very troubling to us as an administration.  It is very troubling to us here at the White House.  It underscores why the President support the — support the Attorney General’s mora- — moratorium on federal death penalty, pending review of the policies and procedures governing its use. 

The President has — long had said and has had deep — deep, deep concerns with how the death penalty is implemented and whether it is consistent — consistent with our — our values. 

So, we are deeply troubled by it, by what we he- — by — about Kenneth Smith’s death.  And so, you know, it is just troubling to hear.

One thing the review covers is a study of the various methods of execution. 

And More: A few people found the official statement underwhelming. As I noted in a comment here, I basically disagree. 

There is also another footnote. The dissent provides the first online sources cited in this term. The possibility of dead links has led to a policy of saving hard copies on the website.