On May 15, Justice Clarence Thomas, joined only by Justice Samuel Alito, dissented from the Supreme Court’s refusal to dismiss a lawsuit challenging the constitutionality of Alabama’s use of lethal injection as a method of execution. The suit was brought by a death row inmate, Kenneth Smith, whom Alabama tried unsuccessfully to execute last November.
That Thomas dissented in Smith’s case would not have surprised anyone who has followed his work on the Supreme Court. Throughout his 32 years on the Court, Thomas has seldom come across a death sentence he wouldn’t uphold or an execution he would not try to expedite.
Unlike Thurgood Marshall, the person Thomas succeeded, who was a passionate opponent of capital punishment, from the first moment Thomas joined the Court he has consistently tried to prevent death row inmates and other prisoners from pursuing Eighth Amendment claims. Thomas’s dissent in Smith’s case is just his latest effort to turn the Eighth Amendment’s prohibition of cruel and unusual punishment into a cruel hoax or an empty promise.
He often tries to mask that fact behind a jurisprudential commitment to originalism and a concern that people, like Smith, who seek judicial protection from miscarriages of justice are abusing the legal process and wasting the Court’s time.
As a result, Thomas is quick to label any claim brought by a death row inmate as “vexatious death penalty litigation.” He does so even when he would normally be sympathetic to the substantive right that is the subject of that litigation.
For example, in 2022 he refused to join his colleagues in granting relief to John Ramirez who alleged that his religious liberty would be violated if Texas did not allow his spiritual advisor to lay hands on him and pray out loud during his execution.
Dissenting in Ramirez Thomas wrote:
Today, this Court should have denied equitable relief to a prisoner who has acted inequitably — as both the District Court and Court of Appeals did before us. The evidence that demonstrates Ramirez is bringing abusive litigation to delay his execution also strongly suggests that he does not sincerely believe that his pastor needs to touch him in the execution chamber.
That even religious liberty claims, to which he is notoriously sympathetic, cannot move Thomas in death penalty cases, tells us a lot about how determined he is to keep the machinery of death running.
As the journalist Andrea Picciotti-Bayer noted in her account of the Ramirez case, “Justice Thomas also argued that continued delay in this execution harms both the state and Ramirez’s victims. An emotional amicus brief filed on behalf of some of Castro’s children begs for the enforcement of Ramirez’s sentence to end ‘an ordeal that has denied peace and closure to Pablo Castro’s children for seventeen years.’”
Picciotti-Bayer pointed out that Thomas worried that in the future inmates will “‘put the State to a stark choice: capitulate to the court-ordered accommodation that it thinks is dangerous, or litigate and delay the execution, knowing that the delay will count against it in the equitable balance.’”
This worry made its appearance in Thomas’s May 15 dissent. The Court’s refusal to grant Alabama’s request to dismiss Smith’s suit, Thomas predicted, will invite more last-minute appeals and become an “instrument of dilatory litigation tactics” in capital cases.
Recall that Smith’s was not a last-minute appeal. He filed his suit last August, well before his botched execution.
As a Reuters report explained, Smith’s lawsuit “alleged that the state’s lethal injection protocol would subject him to cruel and unusual punishment in violation of the U.S. Constitution’s Eighth Amendment based on problems Alabama officials encountered in putting prior condemned inmates to death, including accessing veins to insert intravenous lines.”
“At issue in the case,” the report continued, “is whether, under Supreme Court precedent, a death row inmate may argue that a method of execution known as nitrogen hypoxia that has been approved by Alabama’s legislature but not yet used by its Department of Corrections is a legally available alternative.”
In a series of prior cases, the Supreme Court had put the burden of identifying such an alternative on death row inmates who wish to challenge a method of execution. Smith thought that the fact that Alabama had added nitrogen hypoxia to its execution menu in 2018 satisfied that requirement.
The U.S. Court of Appeals for the Eleventh Circuit agreed with Smith.
That court explained:
Smith plausibly pleads that there is an available alternative method that will reduce the risk of severe pain. In Price v. Commissioner, Department of Corrections, we found that Alabama’s statutorily authorized method of execution (nitrogen hypoxia) could not be considered unavailable simply because no mechanism to implement the procedure had been finalized…Yet the Commissioner continues to argue that Smith failed to provide an available alternative method. The Commissioner completely misses our point from Price. We find that nitrogen hypoxia is an available alternative method for method-of-execution claims. Further, Smith has sufficiently pleaded that nitrogen hypoxia will significantly reduce his pain.
Seven of Justice Thomas’s Supreme Court colleagues were persuaded that statutory authorization was sufficient to make an alternative method of execution “legally available.” The state’s failure to develop a mechanism for implementing that method was not Smith’s problem, and it did not invalidate his Eighth Amendment claim.
But Thomas offered his own radical interpretation of the phrase “legally available.” In his view, as Yvette Borja a staff writer at Balls & Strikes puts it, “because Alabama has not finalized its nitrogen hypoxia protocol, let alone killed anyone using it, Smith didn’t prove that an alternative execution method is ‘available.’”
Borja captured Thomas’s perverse misreading of the Court’s Eighth Amendment precedents when she observed that “[I]t’s Alabama’s job to craft an execution protocol, not Smith’s. Thomas’s argument here would allow the state’s five-years-and-counting delay to justify its failure to give Smith a choice to which he is legally entitled. His opinion characterized the legal availability of nitrogen hypoxia as a ‘threadbare allegation’ and ‘simply irrelevant, without more.’”
Thomas’s dissent in Smith’s case shows the lengths to which he will go, in Borja’s words, to make sure that death penalty jurisdictions, like Alabama, are “free to subject people to severe pain without once worrying about running afoul of the Constitution’s protections for people sentenced to death.”
If that does not qualify as cruelty, I don’t know what would.