John Q. Hamm, Commissioner, Alabama Department of Corrections v. Kenneth Eugene Smith

This Court has repeatedly held that one of “the substantive elements of an Eighth Amendment method-of-execution claim” is the requirement that “a prisoner … plead and prove a known and available alternative” method of execution. Glossip v. Gross, 576 U.S. 863, 880 (2015). To satisfy this element, “an inmate must show that his proposed alternative method is not just theoretically ‘feasible’ but also ‘readily implemented.’” Bucklew v. Precythe, 139 S. Ct. 1112, 1129 (2019). He must “provid[e] the State with a veritable blueprint for carrying the death sentence out.” Nance v. Ward, 142 S. Ct. 2214, 2223 (2022). In the Eleventh Circuit, however, inmates need “not come forward with sufficient detail about how the State could implement” an alternative method if they can just “point[] to the executing state’s official adoption of that method of execution” instead. Price v. Comm’r, Dep’t of Corr., 920 F.3d 1317, 1328 (11th Cir. 2019). That is all Kenneth Smith has done here. He alleges that nitrogen hypoxia is a feasible and a readily implemented alternative method because it is statutorily approved while also alleging that how the method will be carried out is unknown. The Eleventh Circuit held that even if “no mechanism to implement the procedure has been finalized,” it is “available” because it has been adopted by Alabama. App.14. The question presented is: In an Eighth Amendment method-of-execution case, is an alternative method of execution feasible and readily implemented merely because the executing State has statutorily authorized the method?