Does a second attempt to execute a condemned person following a single, cruelly willful attempt to execute that same person violate the prohibition against cruel and unusual punishments under the Eighth and Fourteenth Amendments to the United States Constitution?

QUESTION PRESENTED In November 2022, the Alabama Department of Corrections (ADOC) attempted, but failed, to execute Petitioner Kenneth Eugene Smith by lethal injection because it was unable to establish intravenous access to administer the lethal drugs. It is uncontroverted that ADOC inflicted actual physical and psychological pain on Mr. Smith by repeatedly trying (and failing) to establish IV access through his arms, hands, and by a central line as he was strapped to a gurney for hours. Mr. Smith’s was the third consecutive execution that ADOC botched or aborted for that same reason. ADOC’s failed attempt to execute Mr. Smith caused him severe physical pain and psychological torment, including posttraumatic stress disorder. ADOC later agreed, on the eve of a discovery deadline in a separate method-of-execution case in federal district court, not to attempt a further lethalinjection. But ADOC now intends to make a second attempt to execute Mr. Smith on January 25, 2024—this time by nitrogen hypoxia, which has “never been used to carry out an execution and ha[s] no track record of success[].” Bucklew v. Precythe, 139 S. Ct. 1112, 1130 (2019) (quotation marks and citation omitted). The question presented is: Does a second attempt to execute a condemned person following a single, cruelly willful attempt to execute that same person violate the prohibition against cruel and unusual punishments under the Eighth and Fourteenth Amendments to the United States Constitution?