Hamm v. SmithHamm v. Smith
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting from the denial of certiorari.
In 1988, Kenneth Eugene Smith and an accomplice murdered Elizabeth Sennett for $1,000 apiece. The State of Alabama sentenсed 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, reversing the District Court’s contrary ruling. Later that evening, the Eleventh Circuit granted Smith a stay of execution. The State applied to this Court to dissolve the Eleventh Circuit’s stay, and we granted the application. But, after this last-minute litigаtion, the State was unable to execute Smith before its death warrant
In this petition, the State now asks this Court to summarily 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). Nonetheless, in defined circumstances, our cases countenance a claim that “the State’s chosen method of execution cruelly superadds pain to the death sentence,” thus viоlating the Eighth Amendment. Id., at ___ (slip op., at 13). To plead and prove such a claim, “a prisoner must show a feasible and readily implemented alternative method of exеcution that would significantly reduce a substantial risk of severe 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 Amendment.” Baze v. Rees, 553 U. S. 35, 52 (2008) (plurality opinion).
Our cases further provide guidance on what a prisoner must show to prоve that his proposed alternative method is “feasible and readily implemented.” In Bucklew, we explained that “the inmate’s proposal must be sufficiently detailed to pеrmit 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 prisоner “must make the case that the State really can put him to death, though in a different way than it plans,” by “providing 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“).
Thеse precedents unmistakably establish two propositions. 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 foсus 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).
Here, Smith challenged the State’s chosen method of lethal injection based on the proposed alternative of execution by nitrogen hypoxia. As the plaintiff, Smith was required to “plea[d] factual cоntent” making it plausible that he could establish the availability element of his claim. Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009); see
Since Price, however, the Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxiа is feasible and readily implemented in fact. “If a State adopts a particular method of execution,” Price reasoned, “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 exactly what Smith did, and the Eleventh Circuit, applying Price, held that nothing more was required.
However, Price’s reasoning rests on a fundamental misunderstanding 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 availаble alternative,’ ” constitutes 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 authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff’s burden of showing 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 cоntext of explaining that “[a]n inmate seeking to identify an alternative 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 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 Amendmеnt requires a State to replace its chosen method with an alternative method in executing the plaintiff, 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 indefinite future. Here, Smith alleged only that, and nothing more. He therеfore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.
The Eleventh Circuit’s flawed logic in Price has already 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 outside of that posture. Because the Court declines that opportunity, I respectfully dissent.