Did the Eleventh Circuit deviate from established precedent when it affirmed the denial of a motion for a preliminary injunction on the ground that his planned execution by nitrogen hypoxia using the Alabama Department of Corrections' Protocol would violate his right to be free from cruel and unusual punishment under the Eighth Amendment by exposing him to a substantial risk of being left in a persistent vegetative state, experiencing a stroke, and/or asphyxiation?

QUESTION PRESENTED The State of Alabama has chosen Kenneth Eugene Smith—a death-row inmate whom a jury voted 11-1 to sentence to life without parole, and whom the State has already attempted to execute once before—to be the first person in the United States to ever be executed by its novel and untested nitrogen hypoxia Protocol. That “Alabama has chosen this condemned person, this protocol, and this moment, even though Mr. Smith is suffering mentally and physically from the posttraumatic stress Alabama caused when it botched its first attempt to execute him in 2022,” raises serious concerns. See Pet. App. 33a (J. Pryor, J., dissenting). Indeed, Mr. Smith was selected for execution even though he has not been able to fully exhaust claims raised in a state court postconviction proceeding arising from that failed attempt, which is a deviation from the state’s custom, and treats Mr. Smith differently than other similarly situated inmates. And the State is proceeding despite the mounting evidence of Mr. Smith’s escalating PTSD symptoms, which create a substantial risk that he will vomit during the execution and asphyxiate, causing prolonged or superadded pain and suffering. Indeed, the State has attempted to make eleventh-hour changes to its Protocol to address that risk but has, in doing so, created a situation where Mr. Smith could be without food or water for hours while he awaits execution. The questions presented are: Did the Eleventh Circuit deviate from established precedent when it affirmed the denial of a motion for a preliminary injunction on the ground that his planned execution by nitrogen hypoxia using the Alabama Department of Corrections’ Protocol would violate his right to be free from cruel and unusual punishment under the Eighth Amendment by exposing him to a substantial risk of being left in a persistent vegetative state, experiencing a stroke, and/or asphyxiation? Did the Eleventh Circuit deviate from established precedent when it held that Mr. Smith lacked standing to assert his claim that his planned execution would violate his right to equal protection under the Fourteenth Amendment against the state officials responsible for carrying out his execution?