[U: He Struggled For Several Minutes. But He Is Now Dead.] Two Dissents, On Execution By Nitrogen Hypoxia -- A Procedure Widely Forbidden To Be Used... To Euthanize... Animals.

Update -- local news outlets offer this: . . .The execution took about 22 minutes, and Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible. . . .

In a final statement, Smith said: “Tonight Alabama causes humanity to take a step backwards. . . . I’m leaving with love, peace and light. . . .” End, update.

Do read both of these dissents. We as a nation are better than this. Better than refusing to kill animals the way Alabama will kill Mr. Smith tonight due to documented cruelty to. . . the animal. Damn.

Justice Sotomayor; and Justices Kagan and Jackson:

. . .Smith had warned repeatedly that Alabama would struggle and likely fail to complete its lethal injection in light of a “pattern of the State’s difficulties in establishing venous access.” 2023 WL 4353143, *7 (MD Ala., July 5, 2023). This Court did not listen. It instead vacated a stay of execution without explanation, over three noted dissents. As a result, Smith’s arms were strapped over his head and he watched as his executioners repeatedly stabbed needles into his hands, arms, and collarbone, trying to access his veins. It took an hour and half after this Court vacated the stay before Alabama called off the execution.

Since that day, Smith has suffered from posttraumatic stress. Reliving those hours strapped to the gurney, his medical records confirm worsening bouts of nausea and vomiting over the past few weeks. See Second Supp. Decl. of Katherine Porterfield in No. 2:23–cv–00656 (MD Ala., Jan. 23, 2024), ECF Doc. 87–5, p. 3, ¶¶5–6. Those symptoms have been resistant to prescribed medications. He is therefore likely to vomit during the execution as a combined result of this posttraumatic stress and oxygen deprivation.

Smith asks this Court to stay his execution. He argues that Alabama’s untested execution protocol will likely subject him to an unconstitutional risk of cruel and unusual punishment. According to one of Smith’s experts, “there is a substantial and serious risk that Mr. Smith will experience nausea and vomiting during his execution,” thus “asphyxiating—that is, choking to death -- on his own vomit” before he eventually passes out from hypoxia. Id., at 3–4,¶7.

Further, Alabama believes that an air-tight seal is not needed on the mask. Smith therefore has raised the substantial risk that oxygen will infiltrate the mask and lead to a persistent vegetative state, stroke, or suffocation, superadding pain and prolonging Smith’s death. . . .

Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain. The first time, Smith’s predictions came true. He “survived to describe the intense fear and pain [he] experienced during Alabama’s tortuous attempts to execute [him].” Barber, 600 U. S., at ___ (SOTOMAYOR, J., dissenting from denial of application for stay). This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit. I sincerely hope that he is not proven correct a second time.

With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent. . . .

This is all. . . deplorable. Out.

नमस्ते