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January 24, 2024

Federal courts so far refusing to block Alabama's plan to be first-of-its-kind, second execution

As reported in this new New York Times piece, the "U.S. Supreme Court and a federal appeals court each declined on Wednesday to intervene to stop Alabama from conducting the nation’s first-ever execution by nitrogen gas, putting the state on track to use the novel method to kill a death row prisoner."  Here is more on today's rulings:

Alabama plans to use nitrogen gas to kill Kenneth Smith, who was convicted of a 1988 murder, after the state botched its previous attempt to execute him by lethal injection in November 2022.  Barring any additional legal interventions, prison officials plan to bring him to the execution chamber in Atmore, Ala., on Thursday evening, place a mask on his face and pump nitrogen into it, depriving him of oxygen until he dies.

The Supreme Court declined to intervene in Mr. Smith’s appeal of a state court case, in which his lawyers had argued that the second execution attempt would violate his Eighth Amendment right to be free from cruel and unusual punishments.  The court’s order did not include an explanation or note any dissents.

Hours later, in response to a separate challenge by Mr. Smith’s lawyers, a federal appeals court also declined to halt the execution over the dissent of one of the three judges who had heard the case.  Mr. Smith’s lawyers said they would also appeal that case to the Supreme Court, potentially giving the justices another chance to intervene, though they have been reluctant to do so in last-minute death penalty appeals in recent years.

Nitrogen gas has been used in assisted suicide in Europe and elsewhere, and the state’s lawyers contend that the method — known as nitrogen hypoxia — is painless and will quickly cause Mr. Smith to lose consciousness before he dies.

But Mr. Smith and his lawyers have said they fear the state’s newly created protocol is not sufficient to prevent problems that could cause Mr. Smith severe suffering.  The lawyers said in court papers that if the mask were a poor fit, it could allow oxygen in and prolong Mr. Smith’s suffering, or if he becomes nauseous, he could be “left to choke on his own vomit.”

The execution is scheduled to take place around 6 p.m. Central time at the William C. Holman Correctional Facility, though it could be carried out any time until 6 a.m. the next morning.

A few prior related posts:

January 24, 2024 at 11:31 PM | Permalink


Doug --

I'm waiting for one of your more colorful commenters, of whom there are several, to let us know that all nine Justices are Madame DeFarge-type bloodlusters for having failed to stop this "barbarism" or even put out a single dissent.

There are many reasons to cherish freedom of speech. One of them is it allows the fruitcake faction to hold forth on how humane and advanced and Generally Wonderful they are in contrast to cruel and primitive American law.

You gotta love it, and I do.

Posted by: Bill Otis | Jan 25, 2024 3:05:54 AM

There has to be a new colloquial name for this method--the big jab referred to the needle. Now what do we call it--"Sleepy Gas"?

OT, but interesting to say the least: https://redstate.com/bobhoge/2024/01/25/california-crazy-woman-who-stabbed-date-108-timeskilling-himgets-only-100-hours-of-community-service-n2169180

Posted by: federalist | Jan 25, 2024 9:13:23 AM

According to Judge Jill Pryor, Smith should have yet another chance to choose a feasible alternative to the nitrogen gas protocol that he selected earlier. I wonder what Smith would find wrong with the firing squad? Qualifications of the marksman?

Posted by: DaveP | Jan 25, 2024 9:34:39 AM

Double jeopardy forbids a second attempt to execute a person after the first attempt. But MALE Aunt Jamima Clarence Thomas would rather once again sell out to right-wing slime-balls like Alabama Governor Kay Ivey.

Posted by: william delzell | Jan 25, 2024 9:55:38 AM

Jill Pryor is a moron.

OT, but highly interesting: https://www.ca5.uscourts.gov/opinions/pub/20/20-40359-CV3.pdf

Posted by: federalist | Jan 25, 2024 10:03:38 AM

There has yet to be a dissent in favor of the inmate on the 'double jeopardy' assertion by one of the commenters above. The Alabama Court of Criminal Appeals was unanimous, the Alabama Supreme Court denied review without comment and SCOTUS also denied certiorari without comment as well.

Posted by: DaveP | Jan 25, 2024 10:23:01 AM

As is usual in covering legal issues, the news reporting misses the key issues in the case. Based on a quick scan of the opinions, the claims here are more nuanced than the stark framing of the reporting on this case.

Mr. Smith appears to be wanting to examine the details of the protocol. (Separate from his dubious claim that having failed in the first execution, Alabama can't try again.) Not having heard the testimony, I don't know if the evidence supports any claim of significant flaws in the protocol that would rise to an Eighth Amendment violation. Obviously, as other states start using nitrogen hypoxia and Alabama has repeat executions, the protocol will probably get refined some to make it even more humane. But that is a different issue from whether, today, the evidence is clear that the current protocol is fundamentally flawed.

Posted by: tmm | Jan 25, 2024 11:19:37 AM

much simpler way: prisoner is bound to table. Executioner takes pillow and smothers prisoner. I have no doubt that certain commentators here would jump at the chance to hold the pillow.

Posted by: anon | Jan 25, 2024 11:50:32 AM

I would have no problem with being an executioner.

Posted by: federalist | Jan 25, 2024 1:15:18 PM

William delzell shows us where the true racists reside.

Posted by: TarlsQtr | Jan 25, 2024 1:31:07 PM

william delzell --

"Double jeopardy forbids a second attempt to execute a person after the first attempt."

Flat-out false. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)(Reed, J)(Frankfurter, J, concurring).

"But MALE Aunt Jamima Clarence Thomas would rather once again sell out to right-wing slime-balls like Alabama Governor Kay Ivey."

As TarlsQtr notes, this is 100% racist. Should it be allowed on this forum? Since the forum is private property belonging to Doug, that is for him to decide. I personally would allow it, because it provides a stage for leftist commenters like Mr. Delzell to show the world how repulsive they actually are.

What's next for you, Mr. Delzell? Gay people are "faggots"? Muslims are "towelheads" Jews are "kikes"? C'mon, Mr. Delzell, show us your full inventory.

Posted by: Bill Otis | Jan 25, 2024 2:03:47 PM

I believe the Alabama Court of Criminal Appeals held that the so-called 'botched' execution never even commenced because the ADOC called it off before the drugs were released.

Posted by: DaveP | Jan 25, 2024 2:46:30 PM

Doug, I know you don't moderate, but is there an exemption for racial epithets?

Posted by: federalist | Jan 25, 2024 3:06:55 PM

Criminal or excessively harassing behavior are all I will delete as matter of course. But if folks send me emails making the case for why other comments should be deleted or people censored, I always always consider the request seriously.

Posted by: Doug B | Jan 25, 2024 3:27:16 PM

I am really just curious--calling CT the male Aunt Jemima is a racial slur. Personally, I wouldn't delete--let this jerk show his true colors.

Posted by: federalist | Jan 25, 2024 3:46:17 PM

Leave it up.

Watching him show his true colors is almost as fun as watching his fellow lefties NOT condemn it.

Posted by: TarlsQtr | Jan 25, 2024 4:59:56 PM

William Delzell has a racist issue with Justice Thomas but not Justice Jackson? What a surprise.

Posted by: DaveP | Jan 25, 2024 5:56:13 PM

federalist and TarlsQtr --

Note that not a single Leftist has objected to their ally's flagrantly racist remark. Their silence is wonderfully revealing.

Posted by: Bill Otis | Jan 25, 2024 5:59:18 PM

Bill, do you really view every failure to object and silence as an endorsement? You have failed to object and been silent in responses to hundreds of assertions by federalist of DOJ being "corrupt." You also often failed to object to the rants of Supremecy Clause when he was poluting comment threads. Should I have viewed your silence as "wonderfully revealing" (especially since you comment frequently)?

For many people, "don't feed the trolls" is not only a wise allocation of limited time, but an important way to avoid having conversations go on unproductive tangents. Of course, people are free in this space to criticize others statements on various grounds. But a failure to engage with the stupidness of an off-topic CT slur seems hardly seems an implicit endorsement by folks who I hope have more important uses for limited time.

Posted by: Doug B | Jan 25, 2024 6:46:48 PM


You ask all the time if I agree with Bill or federalist on controversial topics and vice versa.

You also know that if one of us said something so vile, the Hamas fellow travelers who frequent here would be all over it.

I can tell you are an academic and not a practicing attorney. Your crocodile tears aren’t close to believable.

Posted by: TarlsQtr | Jan 25, 2024 9:47:33 PM

You can’t make this shit up.

Doug, on this thread: “Bill, do you really view every failure to object and silence as an endorsement?”

Doug, on another thread today: “As usual, federalist, you are the deflector and projector (while Bill is notably silent in response to your endless claims of DOJ corruption).”

Posted by: TarlsQtr | Jan 25, 2024 9:52:13 PM

Doug --

"...do you really view every failure to object and silence as an endorsement?"

Nope, nor did I say or imply that I do. But a flagrantly and disgustingly racist attack (on a Supreme Court Justice no less) is in a class by itself.

What do you think would happen if TarlsQtr or federalist or I call a Muslim a "towelhead"? Would you say something about that? Would any of the many liberals who post here?

I think the answer to those questions is obvious. Indeed, I've taken a few pies in the face for calling criminals Mr. Nicey.

"You have failed to object and been silent in responses to hundreds of assertions by federalist of DOJ being 'corrupt.'"

That's because it's a somewhat complicated subject. Racism isn't.

P.S. Here it is half a day and lots of comments after Mr. Delzell's racist slur, and STILL not a word of criticism by the Left. You're free to believe that is meaningless, but that is not a belief I share.

Posted by: Bill Otis | Jan 25, 2024 10:54:28 PM

Master Tarls: I know that Bill (and federalist) are sometime keen to claim silence means something. So, in the other thread, I was exploring if Bill thinks I or others should take his silence to be meaningful. I am still waiting to hear his take on federalist’s cries of DOJ corruption (and I would welcome your take as well). Inquiring of others’ views is respectful inquiry, but assuming silence is endorsement seems to me far too much like the “silence = violence” claptrap we sometimes hear from the left.

Posted by: Doug B | Jan 25, 2024 11:04:41 PM

Bill, the parallel question is whether you or federalist or folks on the right would attack a “towel head” comment from someone on the right. I am certain there are folks on the left who view all sorts of right-leaning commentors as having said stuff they consider improper. Do you think they can and should fault you and every else on the the right who does not respond critically as complicit? I am not saying anything is meaningless, I just find the “silence = violence” chatter to be inattentive to the fact that silence often just equals silence.

Posted by: Doug B | Jan 25, 2024 11:20:15 PM

Doug --

Your diversionary attempts here are manful but way too obvious.

A leftist commenter called Justice Thomas a "male Aunt Jemima." That's the subject. But instead of addressing it, you want to talk about federalist, TarlsQtr, me, putative DOJ corruption, and on and on. Anything but the racist liberal Mr. Delzell who wrote that slur.

I really should just leave it there rather than abet your diversion. But it's just too tempting. You ask "whether you or federalist or folks on the right would attack a 'towel head' comment from someone on the right."

That's not just a diversion; it's a diversion morphing into fantasy. You can't help knowing, and in fact you do know, that neither federalist nor I has done anything like engage in the flagrant racism of calling a Muslim (on this blog or anywhere) a towelhead. Nor has TarlsQtr or Soronel Haetir or anyone else on the right. You also know that if that happened, I'd condemn it in a microsecond, just as I immediately condemned the Jan 6 attack (https://www.crimeandconsequences.blog/?p=2710) while liberals were trying to figure out how to make the best political hay of it. Indeed, if you can point to anyone anywhere in the blogosphere who condemned it more quickly or directly than I did, would you please link to that?

And, contrary to your comment, we are not in the present instance talking about something merely "improper." We're talking about rank, explicit racism.

It's time to quit the diversions and think about why the Left in the comments section here is taking a powder on a question where, in other circumstances, they regularly go ballistic.

Posted by: Bill Otis | Jan 25, 2024 11:57:20 PM

Bill, the issue I was engaging was what should be made of a disinclination to engage with an off-topic slur. You've been silent in response to Master Tarls repeatedly saying "defense attorneys ❤️ Hamas" and federalist calling judges and other govt officials "POS." I take your (and others') silence to these slurs as just ... silence.

Not trying to deflect, just trying to explain my disaffinity for “silence = violence” notions, especially in the trollish blog comment setting. Indeed, speaking for myself, the more disgusting and off-topic the slur, the less inclined I am to give it attention with any response. And this thread reminds me, yet again, how disappointingly detatched from sentencing substance these comments too often become.

Posted by: Doug B | Jan 26, 2024 2:17:52 AM


Do you deny that a lot of defense attorneys ❤️ Hamas? Do you deny there are POS government officials?

How are either of those comments comparable with blatant racism? I’m disappointed that you haven’t found worse from me.

If that’s the best you can do, your point is already lost.

BTW, if I said something similar, I’d expect Bill to end our friendship which has expanded beyond “online” over the past 25 years. federalist too. Delzell will be welcomed by his allies with open arms when he eventually returns.

Posted by: TarlsQtr | Jan 26, 2024 3:51:55 PM

I deny that ALL defense attorneys love Hamas, and you said in another thread that you considered a general reference to mean all. Are you now changing your tune and/or will you admit it is a slur to say all defense attorneys love Hamas?

I am sure you have said worse, and it is interesting that you seem to want to take pride in slurs. But more central to this thread is whether you are join with the "silence = violence" crowd or instead share my view that general silence is just ... silence. That's what got me engaged here, because I see the "silence = violence" assertions as quite pernicious as well as factually inaccurate. But maybe that's the team you and Bill are proud to be a part of.

Posted by: Doug B | Jan 26, 2024 5:57:18 PM

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