Smith v. Dunn ( 2021 )

Cite as: 595 U. S. ____ (2021) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–6055 (21A99)
_________________
WILLIE B. SMITH, III v. JEFFERSON S. DUNN,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
[October 21, 2021]
The application for stay of execution of sentence of death
presented to JUSTICE THOMAS and by him referred to the
Court is denied. The petition for a writ of certiorari is de-
nied.
Statement of JUSTICE SOTOMAYOR respecting denial of
the application for stay.
Willie B. Smith III, who is sentenced to die tonight by le-
thal injection in Alabama, seeks instead to be executed by
nitrogen hypoxia, which has been a statutorily approved
method of execution in Alabama since 2018. See S. B.
No. 272, Act 2018-353 (2018). When the Alabama Legisla-
ture adopted nitrogen hypoxia as an approved means of ex-
ecution, it expressly provided that individuals like Smith
who were already on death row could choose to be executed
by nitrogen hypoxia, but provided only a 30-day window in
June 2018 in which to make this election. See Ala. Code
§15–18–82.1(b)(2) (2021).
Smith alleges that he missed this opportunity because his
intellectual disabilities rendered him unable to understand
the election form that the Alabama Department of Correc-
tions (ADOC) provided during that time. He filed suit in
November 2019 seeking to elect nitrogen hypoxia as an al-
2 SMITH v. DUNN
Statement of SOTOMAYOR, J.
ternative to lethal injection. Rather than agreeing to exe-
cute Smith using nitrogen hypoxia, Alabama opposed his
request. Today, the State will execute Smith by lethal in-
jection while Smith’s challenge remains pending.
The law compels denial of Smith’s request for a stay of
execution for the reasons identified by the Eleventh Circuit.
Judge Jill Pryor, concurring in the decision below, however,
identified serious concerns with the way the ADOC has ad-
ministered the Alabama Legislature’s directive to allow
those on death row to choose nitrogen hypoxia as their
means of execution. Smith v. Commissioner, Al. Dept. of
Corrections, No. 21-13581 (Oct. 21, 2021), at 11. I share
these concerns.
The reasons why Alabama chose to limit people on death
row to a 30-day time window in which to familiarize them-
selves with the State’s new means of execution, consider its
risks and potential benefits, and, ultimately, to make the
momentous decision as to whether they wished to die by
this novel procedure, are not currently before this Court.
The Court has previously considered the inequities engen-
dered by this tight timeline. See Dunn v. Price, 587 U. S.
___ (2019). In Price, as here, the evidence indicated that
inmates received the application form only days before the
election window closed, presenting the possibility that some
inmates were “given no more than 72 hours to decide how
[they] wanted to die, notwithstanding the 30-day period
prescribed by state law.” Id., at ___ (slip op., at 5) (BREYER,
J., dissenting from grant of application to vacate stay). As
Judge Pryor concluded, evidence suggests that the “feckless
way” in which the ADOC chose to notify individuals on
death row of this development was at odds with the gravity
of that task and the humanity of those affected. No. 21-
13581, at 12 (concurring opinion).
Alabama does not dispute that Willie Smith has signifi-
cantly below-average intellectual functioning. Although
the State debates his precise reading level and IQ, those
Cite as: 595 U. S. ____ (2021) 3
Statement of SOTOMAYOR, J.
disputes do not resolve the fundamental inequity: the
State’s compressed timeline for notifying eligible inmates
and haphazard approach to doing so. Once a State has de-
termined that individuals on death row should have a
choice as to how the State will execute them, it should en-
sure that a meaningful choice is provided.