Does the Eighth Amendment apply only to imposition of a death sentence, or may a petitioner challenge how a death sentence is carried out?

QUESTIONS PRESENTED At present, fifteen inmates on Alabama’s death row have exhausted federal habeas. All of them are eligible for execution. But only one is scheduled to be put to death. That’s Nathaniel Woods. The reason being: he declined the State’s invitation to participate in his own execution process by choosing the method by which the State would kill him. In June 2018, Alabama officials told the State’s death-row population to choose: execution by lethal injection or by nitrogen gas. See Ala. Code § 15-1882.1(b)(2). Inmates had thirty days to decide. Jd. At that time, the State knew it did not have a nitrogen gas protocol in place, would not have one for the foreseeable future, and would not execute anyone scheduled to die in that manner until it developed a protocol. But the State disclosed none of this. Consequently, seeing no other relevant considerations, inmates chose (or declined to choose) based on what they deemed a preferred method of death. Recently though it came to light that the State is scheduling executions based on whether inmates unwittingly stumbled into a viable method (or not). That is, if an inmate incidentally chose nitrogen gas, his execution has been stayed until the State can create an execution protocol. If he did not, his execution is being prioritized. Such arbitrary application of the death penalty—predicated upon suppressed the Eighth Amendment. The Eleventh Circuit held otherwise, concluding that Mr. Woods’ claim is foreclosed because the Eighth Amendment applies only to “imposition of the death penalty,” not to “the carrying out of [the] death sentence.” App. Ex. 1 at 13-14 (emphasis in original). Mr. Woods asks this Court to address the following substantial questions: 1. Does the Eighth Amendment apply only to imposition of a death sentence, as the Eleventh Circuit held, or may a petitioner challenge, as arbitrary and capricious, how a death sentence is carried out? 2. If the Eighth Amendment does apply to the manner in which a death sentence is carried out, was it violated here where the State targeted Mr. Woods for execution based on his refusal to participate in the execution process? 3. Do the Due Process and Equal Protection Clauses allow the State to suppress information vital to making a life-altering decision and then discriminate among individuals based on such suppressed information? iii