Be Careful What You Ask For

From August last year until last month, Alabama murderer Kenneth Eugene Smith waged a legal battle to require the state to use nitrogen hypoxia, not lethal injection, to execute him. He won. The U.S. District Court for the Middle District of Alabama issued this order on September 20.

The order notes, “In no fewer than two hearings before this Court, Plaintiff has confirmed that nitrogen hypoxia is his chosen and preferred method of execution.” The order says, “Defendants …  are permanently ENJOINED from executing Kenneth Eugene Smith by lethal injection. Sanctions will be swift and serious if this injunction is violated.” Because Alabama intends to carry out the execution by Smith’s preferred method, the court dismissed the case except for any proceedings to enforce the injunction.

So, the Alabama AG goes to the Alabama Supreme Court with a motion to set an execution date. You know what happens next, right?

Smith’s contra bono publico lawyers at Arnold & Porter oppose the motion, and the anti-death-penalty PR machine cranks up. The Washington Post had this article on Sept. 27 by Ben Brasch and Kim Bellware.

The attorneys of an Alabama death row prisoner are fighting the state’s efforts to execute him by an “untested” method that lacks sufficient safety protocols, critics say, setting the stage for the latest legal battle over how death penalty states execute prisoners.

I would quote the passage of the article where the WaPo informs the public that the same lawyers on behalf of the same inmate previously demanded substitution of the “untested” method except for one problem. That inconvenient truth is conveniently absent from the article.

Alabama’s procedures for execution, including nitrogen hypoxia, were filed in redacted form in the federal litigation. They are available here.

Alabama is going with the mask method. Frankly, I am surprised that the procedure says so little about getting a good fit on the mask. And what will they do about facial hair? It doesn’t say.

If nitrogen hypoxia becomes more widely implemented, I boldly predict that there will be a sharp increase in murderers with newly formed religious beliefs that they must have full beards, and that any shaving at all will condemn them for eternity or some such thing. Perhaps it will be the Church of ZZ Top. There is no limit to what inmates will claim. See this post. States need to be ready for that.