In Smith v. Commissioner, Alabama Department of Corrections, (11th Cir., Jan. 24, 2024), the U.S. 11th Circuit Court of Appeals in a 2-1 decision refused to stop the January 25 execution of death row inmate Kenneth Smith. The U.S. Supreme Court also refused to stay Smith's execution and denied certiorari in the case, initially in an Order dated January 24 (Smith v. Alabama, (Docket No. 23-6517)), and subsequently in an order dated January 25, to which Justice Sotomayor filed a dissent, as did Justice Kagan joined by Justice Jackson. (Smith v. Hamm, (Docket No. 23-6562)). Smith was executed in the evening of January 25. The case has garnered substantial news coverage because Alabama used a novel execution method-- nitrogen gas-- after a first attempt at execution by lethal injection failed. In addition to 8th Amendment claims, Smith, who wished to engage in audible prayer as he was being executed, raised free exercise claims under RLUIPA (as well as other claims). The 11th Circuit affirmed the district court's refusal to issue a preliminary injunction, saying in part:
Here, Smith argues that the Protocol substantially burdens his ability to audibly pray during the course of his execution because he faces an untenable choice—audibly pray or face a substantial risk of superadded pain or prolonged death due to a dislodged mask. It is not speculative that Smith would engage in religious exercise because he both audibly prayed and sang the contemporary hymn “I Am Not Alone” during his failed execution. However, we cannot say that the district court clearly erred when it found that any risk of the mask gaping or dislodging is speculative based upon the same factual findings regarding the mask’s design, fit, and nitrogen volumes above. Without such findings, we cannot conclude that Smith will be substantially burdened in his ability to audibly pray during the course of the execution. Based upon this standard of review, we are bound to accept the district court’s findings as to Smith’s claim and affirm the district court on its RLUIPA holding.
Judge Wilson filed a concurring opinion and Judge Pryor filed a dissent on the 8th Amendment issue.
