Smith v. Hamm
The Supreme Court refused to stop Alabama from executing Kenneth Smith by nitrogen hypoxia — a method never used on a human being before — with no written explanation, over public dissents from three justices.
Three justices argued that Smith, whom Alabama had already failed to execute by lethal injection in a botched 2022 attempt, faced serious and documented risks of unconstitutional suffering and deserved more time to challenge the novel protocol in court.
How it got here: A federal district court denied Smith's request to block the execution; the Eleventh Circuit affirmed; Smith then asked the Supreme Court for an emergency stay and certiorari review.
The Case in Depth
What happened
Kenneth Smith was on death row in Alabama for a 1988 murder-for-hire killing. In November 2022, Alabama tried and failed to execute him by lethal injection — repeatedly stabbing needles into his hands, arms, and collarbone for over an hour before calling it off. Since then, Smith developed post-traumatic stress and recurring nausea. Alabama then selected him as the first person in U.S. history to be executed by nitrogen hypoxia, using an off-the-shelf mask that had never been fitted to him, under a protocol released only months earlier and heavily redacted.
The question before the Court
Can Alabama go ahead with a first-ever nitrogen gas execution when the condemned man faces documented medical risks and has had little chance to legally challenge the untested, heavily redacted protocol?
The Court's answer
Yes — the Court denied both the emergency request to pause the execution and the request to take up the case, with no written explanation. The denial left in place lower court rulings that Smith had not clearly shown Alabama's nitrogen hypoxia protocol would likely cause him unconstitutional suffering compared to a known alternative method, and that his proposed changes to the protocol did not satisfy the legal test for proving a workable alternative existed.
Three justices publicly disagreed. Justice Sotomayor argued Smith had shown a strong likelihood of winning his Eighth Amendment claim — that Alabama was using a vulnerable man as a test subject after already botching his execution — and that the courts below had set too high a bar for the alternative-method requirement. Justice Kagan, joined by Justice Jackson, raised the narrower question of whether the Court's standard for execution-method challenges, which requires showing serious pain is "sure or very likely," can fairly apply when an execution method is entirely new and its effects are largely unknown.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The decision allowed an entirely untested execution method to go forward without the Supreme Court offering any legal explanation. Future death-row prisoners challenging novel execution methods will face the same demanding legal standard — showing that serious pain is likely and that a better alternative exists — even when almost nothing is known about how a new method actually works in practice.
What changes now
The one-line order allowed Alabama to proceed with the execution on the night of January 25, 2024. Because the Court denied certiorari, no merits ruling on the constitutionality of nitrogen hypoxia was issued. Future prisoners challenging this or other novel execution methods in Alabama and elsewhere will continue to litigate under the Bucklew standard, with unresolved questions — flagged by the dissents — about how that framework applies when a method is entirely untested.
What this does not decide
The denial of certiorari is not a ruling that Alabama's nitrogen hypoxia protocol is constitutional. The Court also did not resolve whether the demanding Glossip/Bucklew standard for execution-method challenges should be modified when a method is entirely novel and its risks cannot yet be fully known. Those questions remain open.
Concurrences and dissents
Dissent — Justice Sotomayor
Justice Sotomayor argued that Smith had shown a substantial likelihood of success on his Eighth Amendment claim and that the equities overwhelmingly favored a stay. She contended that Alabama was using Smith — a man it had already subjected to a botched, painful lethal injection — as a 'guinea pig' for an untested method shrouded in secrecy. She would have granted certiorari, summarily reversed the Eleventh Circuit, and at minimum paused the execution to allow full litigation of Smith's constitutional claims.
Dissent — Justice Kagan
Justice Kagan, joined by Justice Jackson, focused on a narrower legal question: whether the Court's existing standard for execution-method Eighth Amendment claims — requiring a prisoner to show serious pain is 'sure or very likely' — can operate fairly when an execution method is entirely new and its effects are largely unknown. She argued the Court should have granted certiorari to address that important question before allowing the execution to proceed, and would also have granted the stay.
How the Court got there
The legal reasoning, step by step
- Smith sought emergency relief under the Eighth Amendment's ban on cruel and unusual punishment, which prohibits execution methods that pose a substantial risk of serious pain. Under the framework the Supreme Court set in Bucklew v. Precythe (2019), a prisoner challenging an execution method must show both that the risk of pain is substantial and that a known, readily available alternative method would significantly reduce that risk — a two-part, demanding standard.
- The federal district court found Smith's claimed risks too speculative — requiring, in its words, 'a cascade of unlikely events' — including his documented likelihood of vomiting into the nitrogen mask and the risk of oxygen seeping through an imperfect seal, potentially causing a stroke, vegetative state, or prolonged suffocation rather than a quick death.
- The Eleventh Circuit unanimously agreed the district court had gone too far in demanding a near-complete blueprint for an alternative protocol, but two of three judges still upheld its factual finding that Smith had not established a substantial risk of serious harm; the panel affirmed denial of his emergency motion.
- Justice Kagan's separate dissent raised a distinct structural question: whether the Bucklew/Glossip standard — which requires showing serious pain is 'sure or very likely' — can work fairly when a method is so new that almost nothing is known about how it will affect a particular person, suggesting the Court should have taken the case to address that issue before allowing the execution to proceed.
- The Supreme Court's per curiam order denied both the stay and certiorari without addressing any of the above legal questions, leaving the existing legal standards in place and the lower courts' factual findings undisturbed.