Hamm v. Smith

Cite as: 598 U. S. ____ (2023) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
JOHN Q. HAMM, COMMISSIONER, ALABAMA
DEPARTMENT OF CORRECTIONS
v. KENNETH EUGENE SMITH
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 22–580. Decided May 15, 2023
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE ALITO joins, dis-
senting from the denial of certiorari.
In 1988, Kenneth Eugene Smith and an accomplice mur-
dered Elizabeth Sennett for $1,000 apiece. The State of Al-
abama sentenced Smith to death. Last year, it scheduled
Smith’s execution for November 17, 2022, and Smith
brought an Eighth Amendment challenge to the State’s
plan to execute him by lethal injection. On the afternoon of
November 17, a divided Eleventh Circuit panel held that
Smith had pleaded a viable method-of-execution claim, re-
versing the District Court’s contrary ruling. Later that
evening, the Eleventh Circuit granted Smith a stay of exe-
cution. The State applied to this Court to dissolve the Elev-
enth Circuit’s stay, and we granted the application. But,
after this last-minute litigation, the State was unable to ex-
ecute Smith before its death warrant expired. Smith’s law-
suit thus remains pending in the District Court.
In this petition, the State now asks this Court to sum-
marily reverse the Eleventh Circuit’s holding that Smith
pleaded a viable Eighth Amendment claim. I would do so.
The judgment below rests on flawed Circuit precedent that
is irreconcilable with our method-of-execution case law.
“The Constitution allows capital punishment” and “does
not guarantee a prisoner a painless death.” Bucklew v.
Precythe, 587 U. S. ___, ___, ___ (2019) (slip op., at 8, 12).
2 HAMM v. SMITH
THOMAS, J., dissenting
Nonetheless, in defined circumstances, our cases counte-
nance a claim that “the State’s chosen method of execution
cruelly superadds pain to the death sentence,” thus violat-
ing the Eighth Amendment. Id., at ___ (slip op., at 13). To
plead and prove such a claim, “a prisoner must show a fea-
sible and readily implemented alternative method of execu-
tion that would significantly reduce a substantial risk of se-
vere pain and that the State has refused to adopt without a
legitimate penological reason.” Ibid. Only with such a
showing can “a State’s refusal to change its method . . . be
viewed as ‘cruel and unusual’ under the Eighth Amend-
ment.” Baze v. Rees, 553 U. S. 35, 52 (2008) (plurality opin-
ion).
Our cases further provide guidance on what a prisoner
must show to prove that his proposed alternative method is
“feasible and readily implemented.” In Bucklew, we ex-
plained that “the inmate’s proposal must be sufficiently de-
tailed to permit a finding that the State could carry it out
relatively easily and reasonably quickly.” 587 U. S., at ___
(slip op., at 21) (internal quotation marks omitted). And,
just last Term, the Court underscored that the prisoner
“must make the case that the State really can put him to
death, though in a different way than it plans,” by “provid-
ing the State with a veritable blueprint for carrying the
death sentence out.” Nance v. Ward, 597 U. S. ___, ___
(2022) (slip op., at 8); see also ibid. (“If the inmate obtains
his requested relief, it is because he has persuaded a court
that the State could readily use his proposal to execute
him”).
These precedents unmistakably establish two proposi-
tions. First, it is the prisoner’s burden to “plead and prove
a known and available alternative.” Glossip v. Gross, 576
U. S. 863, 880 (2015). Second, the focus of the “feasible and
readily implemented” element is practical availability,
which is ultimately a question of fact. See Nance, 597 U. S.,
at ___ (slip op., at 8); Bucklew, 587 U. S., at ___ (slip op., at
21).
Cite as: 598 U. S. ____ (2023) 3
THOMAS, J., dissenting
Here, Smith challenged the State’s chosen method of le-
thal injection based on the proposed alternative of execu-
tion by nitrogen hypoxia. As the plaintiff, Smith was re-
quired to “plea[d] factual content” making it plausible that
he could establish the availability element of his claim.
Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009); see Fed. Rule
Civ. Proc. 8(a). Smith, however, did not even attempt to
plead facts indicating that Alabama “could readily use [ni-
trogen hypoxia] to execute him.” Nance, 597 U. S., at ___
(slip op., at 8). Instead, he alleged only that, “[a]s a matter
of law, nitrogen hypoxia is an available and feasible alter-
native method of execution,” citing Price v. Commissioner,
Ala. Dept. of Corrections, 920 F. 3d 1317, 1328–1329 (CA11
2019), as support. Motion To Alter or Amend Judgt. in No.
2:22–cv–00497 (MD Ala., Oct. 19, 2022), ECF Doc. 24–1,
Exh. A, p. 19, ¶74 (emphasis added). And the Eleventh Cir-
cuit considered this threadbare allegation sufficient to sat-
isfy Smith’s pleading burden on the availability element.
Understanding the court’s reasoning below requires some
background about Alabama law and the Eleventh Circuit’s
Price decision. In 2018, Alabama enacted a statute author-
izing execution by nitrogen hypoxia for inmates who elected
that method within 30 days of their sentences becoming fi-
nal or, for those whose sentences were already final before
June 1, 2018, within 30 days of that date. Ala. Code §15–
18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so le-
thal injection remains the only method of execution author-
ized by state law in his case. §15–18–82.1(a).) Nearly five
years later, Alabama has yet to carry out any execution by
nitrogen hypoxia or to finalize a protocol for implementing
that method—which “ha[s] never been used to carry out an
execution and ha[s] no track record of successful use” in any
jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (in-
ternal quotation marks omitted).
Since Price, however, the Eleventh Circuit has treated
the existence of this Alabama statute as relieving inmates
4 HAMM v. SMITH
THOMAS, J., dissenting
like Smith of their burden to plead and prove that nitrogen
hypoxia is feasible and readily implemented in fact. “If a
State adopts a particular method of execution,” Price rea-
soned, “it thereby concedes that the method of execution is
available to its inmates.” 920 F. 3d, at 1327–1328. Thus,
“an inmate may satisfy his burden to demonstrate that [a]
method of execution is feasible and readily implemented by”
simply “pointing to the executing state’s official adoption of
that method of execution.” Id., at 1328. Here, that is ex-
actly what Smith did, and the Eleventh Circuit, applying
Price, held that nothing more was required.
However, Price’s reasoning rests on a fundamental mis-
understanding of the inquiry marked out by Baze, Glossip,
and Bucklew. Those cases set forth the circumstances in
which a State’s use of one method of execution, rather than
an identified “ ‘known and available alternative,’ ” consti-
tutes cruel and unusual punishment under the Eighth
Amendment. Bucklew, 587 U. S., at ___ (slip op., at 13)
(quoting Glossip, 576 U. S., at 878); see Baze, 553 U. S., at
52. The gravamen of the constitutional wrong is the State’s
unjustified “refus[al] to adopt” that proffered alternative
despite its “documented advantages,” including its ready
availability. Ibid. Accordingly, whether the State has au-
thorized the proffered alternative as a matter of state stat-
utory law has no relevance to the plaintiff ’s burden of show-
ing a constitutional violation. Bucklew has already
explained why: “[T]he Eighth Amendment is the supreme
law of the land, and the comparative assessment it requires
can’t be controlled by the State’s choice of which methods to
authorize in its statutes.” 587 U. S., at ___–___ (slip op., at
19–20).
The Bucklew Court made that statement in the context of
explaining that “[a]n inmate seeking to identify an alterna-
tive method of execution is not limited to choosing among
those presently authorized by a particular State’s law,” id.,
at ___ (slip op., at 19), but the underlying logic cuts both
Cite as: 598 U. S. ____ (2023) 5
THOMAS, J., dissenting
ways. See Heffernan v. City of Paterson, 578 U. S. 266, 272
(2016) (“[I]n the law, what is sauce for the goose is normally
sauce for the gander”). When the question is whether the
Eighth Amendment requires a State to replace its chosen
method with an alternative method in executing the plain-
tiff, it is simply irrelevant, without more, that the State’s
statutes authorize the use of the alternative method in
other executions that are to take place sometime in the in-
definite future. Here, Smith alleged only that, and nothing
more. He therefore failed to state a claim, and the Eleventh
Circuit erred by holding otherwise.
The Eleventh Circuit’s error is not only plain but also se-
rious enough to warrant correction. Even if “the burden of
the alternative-method requirement ‘can be overstated,’ ”
Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring)
(slip op., at 1), it remains an essential element of an Eighth
Amendment method-of-execution claim, and it must be ap-
propriately policed lest it become an instrument of dilatory
litigation tactics. The comparative analysis set forth in
Baze, Glossip, and Bucklew contains an inherent risk of in-
centivizing “an inmate intent on dragging out litigation . . .
to identify only a method of execution on the boundary of
what’s practically available to the state.” Middlebrooks v.
Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., state-
ment respecting denial of rehearing en banc). The Eleventh
Circuit’s approach of treating any statutorily authorized
method as available as a matter of law—even an entirely
novel method that may not be readily implementable in re-
ality—only heightens that danger. In turn, and as a result,
it “perversely incentivize[s] States to delay or even refrain
from approving even the most humane methods of execu-
tion” any earlier than the moment they are prepared to put
them into practice. Price v. Dunn, 587 U. S. ___, ___ (2019)
(THOMAS, J., concurring in denial of certiorari) (slip op., at
11).
The Eleventh Circuit’s flawed logic in Price has already
6 HAMM v. SMITH
THOMAS, J., dissenting
forced us to intervene in one last-minute capital emergency.
This petition offered an opportunity, which may well prove
unique, to consider and correct Price’s faulty reasoning out-
side of that posture. Because the Court declines that oppor-
tunity, I respectfully dissent.