Faculty of law blogs / UNIVERSITY OF OXFORD

Two damnable trilogies: The U.S. Supreme Court’s jurisprudence on ‘method-of-execution’ challenges and resultant botched and failed executions in Alabama


Jon Yorke
Professor of Human Rights, Birmingham City University
Joel Zivot
Associate Professor of Anesthesiology and Surgery, Emory University School of Medicine


Time to read

11 Minutes

A trilogy of judgments by the U.S. Supreme Court has developed a surreal justification for the imposition of cruelty in executions. The awful consequences of this dangerous reasoning have been imposed through the Alabama Department of Corrections’ (ADOC) maladministration in their lethal injection protocol. We focus on a second trilogy of cases involving the death of Mr Joseph Nathan James, and the botched and failed executions of Mr Alan Eugene Miller and Mr Kenneth Eugene Smith. Further emboldened by the Supreme Court’s decisions, Alabama has created a new and untested execution process through nitrogen gas inhalation and 25 January 2024 potentially marks the horrific inauguration of this process.

This post will provide a reading of these two trilogies and propose that it is likely that a violation of human dignity will occur for those facing death by nitrogen. Chief Justice John Roberts provides little hope for successful challenges to execution by nitrogen as he reminds us that the Supreme Court:

has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishments.[1]   

In legalese, let the cruelty continue.  

The first damnable trilogy

The flags of Alabama and the United StatesThrough Baze v. Rees (2008),[2] Glossip v. Gross (2015)[3] and Bucklew v. Precythe (2019),[4] the Supreme Court considered ‘method-of-execution’ challenges and created a corpus of decisions which defy reasonable expressions of fairness and humanity. Through the Baze-Glossip-Bucklew test, the U.S. Constitution's Eighth Amendment 'cruel and unusual punishments' clause has received a strange interpretation, casting a dark shadow.  

Mr Ralph Baze

In Baze, the Supreme Court held that the risk of Kentucky improperly administering the first drug in the lethal injection protocol did not render cruel and unusual punishment.[5] Chief Justice Roberts held that there is a burden of proof to be carried by the inmate in assessing the future risk of pain to be, “sure or very likely to cause serious illness and needless suffering,” and constitute an “objectively intolerable risk of harm that prevents prison officials from pleading that they were subjectively blameless for purposes of the Eighth Amendment.”[6]  

The Chief Justice affirmed that the court has not asked the States to define “with exactness the extent of the constitutional provision” that is violated, and that States have the benefit of the doubt when they make mistakes, as “accidents happen for which no man is to blame.”[7]

The unfairness is extraordinary. The scales for the burden of proof are glaringly tipped in favour of the State and is further locked in through the court’s linguistic techniques for changing the meaning of words. The Chief Justice displayed a wordsmith’s etymological power in stating “the punishment of death is not cruel, within the meaning of that word as used in the Constitution.”[8]

Under the lethal injection protocol, the court has taken away from inmates the ability to express their pain through the normal and good faith use of language. So ‘cruelty’ and ‘torture’ is now not what inmates subjectively feel, because under the Constitution it is a phenomenon that only exists if the Supreme Court says it exists.

Mr Richard Glossip

Justice Samuel Alito provided the judgment in Glossip v. Gross. Through the Baze test for assessing the risk of pain, he was empowered to apply a reductio ad absurdum for disregarding sound scientific assessment of the inappropriateness of midazolam for use as anaesthesia in the execution protocol.[9]

The State provided only one medical expert to establish the efficacy of the drug but his testimony was implausible and scientifically unsupported.[10] Glossip’s two medical experts provided ample evidence to refute the State’s witness, and demonstrated that midazolam has a ‘ceiling effect’. This means that there will be an insufficient anaesthetic effect to maintain unconsciousness as the lethal substances kill the inmate.[11]

Justice Alito provided the judicial seal for the unreasonable evidentiary standard. This creates the situation in which the inmate cannot meaningfully challenge a method of execution unless an alternative is available that is “feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”[12] 

In her dissent in Glossip, Justice Sonia Sotomayor identified the glaring deficiency that “[i]rrespective of the existence of alternatives, there are some risks so grave that it violates contemporary standards of decency to expose anyone unwillingly to them.”[13] This means that if all available options of execution methods will cause torture and cruelty, there is currently no practical constitutional protection for the inmate.[14]

Mr Russell Bucklew

Russell Bucklew suffers from a congenital condition known as cavernous hemangioma. It is a very rare condition which causes tumours filled with blood vessels to grow over his body, and which would very likely burst during lethal injection. Dr Joel Zivot testified as an expert witness in the District Court and explained that if subject to lethal injection, Mr Bucklew would very likely be unable to maintain his airways, would haemorrhage blood, and then would exhibit convulsions and subsequently choke to death.[15]

Bucklew’s rare medical condition provided an ideal opportunity for the Supreme Court to consider specific questions arising from ‘facial’[16] and ‘as applied’[17] method-of-execution challenges. This would distinguish between how execution protocols and methods function generally (facially), as opposed to what will likely happen in a specific case (as applied). 

Due to Mr Bucklew’s medical condition he argued that the Baze-Glossip test should govern only facial challenges. This would allow an expression of human dignity to inform the constitutional assessment of his particular medical condition.[18]  The majority, however, denied this distinguishing feature and allowed the opportunity for impermissible suffering.[19]

The second damnable trilogy

Mr Joe Nathan James

On 28 July 2022, Mr Joe Nathan James was subjected to a three-hour botched lethal injection execution in Alabama, which was then the longest malfunction on record.[20] The State’s protocol had multiple redactions preventing transparent assessment of the failings, so Mr James’ family requested that Dr Joel Zivot conduct an autopsy.[21]

Eyewitnesses reported that Mr James struggled on the gurney against the restraints. Dr Zivot found multiple bruises on both arms due to the difficulty in locating a vein, and identified that James had been subjected to a ‘cut down’ procedure, with his arm sliced open in attempts to establish intravenous access.[22] Without anaesthesia this would have caused intense pain. During microscopic evaluation of the lungs, Dr Zivot discovered pulmonary edema fluid indicating a torturous death by suffocation.[23]  

Mr Alan Eugene Miller

In June 2018, Alabama adopted legislation for the use of nitrogen in executions,[24] but the Eleventh Circuit Court of Appeals noted that four years later the “State has yet to come up with or implement a protocol for carrying out executions” via nitrogen inhalation.[25] The ADOC mislaid Mr Miller’s form in which he selected the execution method of nitrogen. However, due to the absence of the nitrogen protocol the State prepared for lethal injection.

With Professor Deborah Denno of Fordham University School of Law, the authors of this post submitted a Complaint about Mr Miller’s case to the UN Special Rapporteurs on Torture and Executions.[26] We detailed the examples of cruelty imposed in the preceding botched executions, and argued Mr Miller would very likely be subjected to similar treatment. The Special Rapporteurs requested that the U.S. government “intervene to halt the execution … pending a review of the execution protocol in the State of Alabama.”[27] However, the U.S. government did not provide a reply to the UN and allowed the subsequent botched process.

On the evening of 22 September 2022, the ADOC prepared Mr Miller for execution. Ahead of the scheduled execution, the District Court imposed an injunction that the Eleventh Circuit upheld,[28] but which the Supreme Court vacated. The expiration of the death warrant was imminent and in the stress of the occasion the ADOC could not locate an appropriate vein and so could not set an IV line before midnight. The execution was then called off. 

Mr Kenneth Eugene Smith

In 1988, Mrs Elizabeth Sennett was murdered in Colbert County, Alabama, by Mr John Parker.[29] Mr Smith was his accomplice in the burglary and assault. He had no knowledge that Mr Parker was intending to kill the victim and he did not participate in the murder. Mr Parker was executed in 2010. Even though Mr Smith received an unfair trial, and he has already been the victim of a botched and failed execution, the State still wants to kill him.     

District Court Judge R. Austin Huffaker Jr, in Smith v. Hamm (2023), recounted the facts of the trauma inflicted during the failed execution.[30] Mr Smith’s restraints were too tight, he was subjected to repeated needle stabbings, he was tilted upside down and he suffered back injuries that have not healed. When the prison officials took him back to the cell he burst into tears and has since suffered physical and mental trauma.

However, Alabama is not stopping. Mr Smith’s new execution date has been set for 25 January 2024. This will be the first execution under the protocol for nitrogen inhalation. 

On 23 November 2023, the authors of this post submitted a Complaint on behalf of Mr Smith to the UN Special Rapporteur on Executions, detailing how the government of Alabama is violating the US’s international law obligations.[31] We included a medical assessment of nitrogen inhalation, noting there will be difficulties in applying the mask for the inmate to breathe in the gas and there are dangers to prison staff through exposure to leaking nitrogen. Once breathed in by the inmate, the nitrogen will cause seizures and aspirate gastric contents leading to a chemical burning in the lungs. It is possible that the inmate will stop breathing and that apnea may lead to intense pain through the sensation of suffocation.[32]       

Where is human dignity?

The legacy of Baze-Glossip-Bucklew is the cruelty imposed by Alabama upon James-Miller-Smith. What both of these trilogies tell us is that the U.S. capital judicial process has forgotten about its constitutional obligation under Roper v. Simmons (2005), in which Justice Anthony Kennedy stated:

By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.[33]

The cruel stories of these two trilogies are made possible through the Supreme Court’s unconscionable demands on the burden of proof for the inmate to demonstrate that the execution will not contravene the U.S. Constitution. Even more problematic is that executions produce unforeseen and wider opportunities for the States to act negligently, and even purposefully, in imposing cruel ways of killing people.

On 19 July 2023, the Eleventh Circuit denied Mr James Edward Barber’s claim that Alabama’s lethal injection protocol violated the Eighth Amendment. Judge Jill Prior provided a dissenting opinion in which she considered the James-Miller-Smith trilogy and concluded:

Three botched executions in a row are three too many. Each time, ADOC has insisted that the courts should trust it to get it right, only to fail again.[34]

A damning indictment of the tale of these two damnable trilogies. Can we have trust in the U.S. institutions imposing capital punishment to ensure cruelty is not committed? We cannot, and they will most likely fail by imposing cruelty again, and again.

Profile photo of Jon Yorke Professor Jon Yorke is Professor of Human Rights and the Director of the Centre for Human Rights at Birmingham City University.
Profile photo of Joel Zivot Dr Joel Zivot is Associate Professor of Anesthesiology and Surgery at Emory University School of Medicine in Atlanta, Georgia.

Image credit: Lawrence G. Miller via Flickr. Licensed under Creative Commons CC BY-NC-ND 2.0 DEED.

[1] Baze v. Rees, 553 U.S. 35 (2008) 48.

[2] Baze v. Rees (n 1) 48.

[3] Glossip v. Gross, 135 S. Ct. 2726 (2015). 

[4] Bucklew v. Precythe, 139 S. Ct. 112 (2019).

[5] The three drugs used in Kentucky’s execution protocol were: sodium thiopental, pancuronium bromide and potassium chloride: Baze v. Rees (n 1) 35.  

[6] Baze v. Rees (n 1) 50. Internal quotation marks omitted, citing Helling v. McKinney, 509 U.S. 25 (1993) 33, 34-35 and Farmer v. Brennan, 511 U.S. 825 (1994) 842, 846.  

[7] Baze v. Rees (n 1) 48, 51: the Chief Justice stated, “[r]ather than undertake such an effort, the [Supreme Court’s decisions] simply noted that torture … and unnecessary cruelty are forbidden,” Internal quotation marks omitted, citing Wilkerson v. Utah, 99 U.S. 130 (1879) 134-135 and Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) 462.  

[8] Baze v. Rees (n 1) 48.

[9] For a discussion of the judicial assessment of the scientific assessment of Oklahoma’s execution protocol see: Jon Yorke, ‘Comity, Finality, and Oklahoma’s Lethal Injection Protocol’ (2017) 69 Oklahoma Law Review 545. 

[10] Justice Sotomayor dissenting opinion in Glossip v. Gross (n 3) 2781-2786. 

[11] Glossip v. Gross (n 3) 2785-86.

[12] Glossip v. Gross (n 3) 2737. Justice Thomas provided an additional substantive requirement in that in his view the Eighth Amendment, “prohibits only those methods of execution that are deliberately designed to inflict pain”: Glossip v. Gross (n 3) 2750. 

[13] Glossip v. Gross (n 3) 2794. Quotation marks omitted, citing Helling v. McKinney, 509 U.S. 25 (1993) 36 (emphasis in original).

[14] See Glossip v. Gross (n 3) 2795-2796. Reminiscent of a horror story, Justice Sotomayor explains: “Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death … In concocting this additional requirement, the Court is motivated by a desire to preserve State’s ability to conduct executions in the face of changing circumstances.”

[15] Dr Zivot’s testimony in the District Court is summarised by Justice Breyer in Bucklew v. Precythe (n 4) 1138. Dr Zivot testified that in light of “the degree to which Mr. Bucklew’s airway is compromised by the hemangiomas” and “the particular psychological and physical effects of lethal injection, it is highly likely that Mr Bucklew would be unable to maintain the integrity of his airway during the time after receiving the lethal injection and before death,” … “hemorrhaging will further impede Mr Bucklew’s airway by filling his mouth and airway with blood, causing him to choke and cough on his own blood” … “it is highly likely that Mr Bucklew, given his specific congenital medical condition, cannot undergo lethal injection without experiencing the excruciating pain and suffering … suffocation, convulsions, and visible hemorrhaging.”

[16] Justice Gorsuch explained that a “facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications,” Bucklew v. Precythe (n 4) 1127.

[17]Justice Kavanaugh explained that ‘as-applied’ challenges are, “a challenge to a method of execution that is constitutional in general but that the inmate says is very likely to cause him severe pain,” Bucklew v. Precythe (n 4) 1135.

[18] Justice Brennan developed a judicial line of thought that the death penalty violates human dignity in Furman v. Georgia, 408 U.S. 238 (1972) 270-73, Gregg v. Georgia, 428 U.S. 153 (1976) 229 and McCleskey v. Kemp, 481 U.S. 279 (1987) 336. See also: Frank Baumgartner, ‘Fifty years of a broken system: The US death penalty at the 50th anniversary of Furman v. Georgia’ (Oxford DPRU Blog, 29 June 2022).   

[19]Justice Breyer lamented in dissent that the “evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering. The majority holds that the State may execute him anyway,” Bucklew v. Precythe (n 4) 1136.

[21] Death Penalty Information Center, ‘Private autopsy documents ​“carnage” experienced by Alabama death-row prisoner’ (16 August 2022).

[25] Alan Eugene Miller v. Commissioner, Alabama Department of Corrections, et al, No. 22-13136 (2022) (U.S. Court of Appeals for the Eleventh Circuit) 18.

[26] Jon Yorke, Joel Zivot and Deborah Denno, ‘Complaint on behalf of Mr. Alan Eugene Miller’ (12 September 2022).

[29] Smith v. State, 620 So.2d 732 (1992) (Alabama Court of Criminal Appeals).

[30] Smith v. Hamm, 2:22-cv-497-RAH [WO] (2023) (U.S. District Court for the Middle District of Alabama).

[31] To be published following the Special Rapporteur submitting a Communication to the State Department of the U.S. Government. Once received the government has 60 days to respond and then their Communication will be published on the Special Procedure mandate website.

[32] Forthcoming complaint to UN Special Rapporteur on Executions (n 31).

[33] Roper v. Simmons, 543 U.S. 551 (2005) 560.

[34] Barber v. Governor of the State of Alabama, 73 F. 4th 1306 (2023) (U.S. Court of Appeals for the Eleventh Circuit) 1341.