Whether the Eighth Amendment prohibits a state from executing a condemned prisoner after multiple failed execution attempts involving repeated difficulty establishing intravenous access

No question identified. : Smith. Having tried and failed to execute Mr. Smith by lethal injection on November 17, 2022, the State now intends to use nitrogen hypoxia—a method of execution never before attempted by any state or the federal government—pursuant to a protocol that has never been tested. The threatened injury to Mr. Smith outweighs the harm that a stay would cause the State, and such relief is in the public interest. A stay is warranted to consider the weighty issues raised. Lonchar v. Thomas, 517 U.S. 314, 320-21 (1996); Barefoot v. E'stelle, 463 U.S. 880, 893-94 (1983). Mr. Smith is able to meet the requirements for a stay, because he can make a strong showing that he is likely to succeed on the merits of his claims. Nken v. Holder, 556 U.S. 418, 426 (2009). This Court also balances the harm to the parties and the public interest. Id. As set forth below, Mr. Smith has shown a likelihood of success on the merits, and the equities weigh in favor of granting a stay. First, Mr. Smith is likely to succeed on the merits of his Eighth Amendment claim. The Eighth Amendment prohibits a State’s successive attempt to execute a condemned person after “a series of abortive attempts or even a single, cruelly willful attempt.” See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 471 (1947) (Frankfurter, J., concurring); see also Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality op.). In Baze, this Court distinguished “innocent misadventures,” which do not give rise to an Eighth Amendment violation, from “a series of abortive attempts,” which would. 553 U.S. at 50. Under Baze, there are two key features of “innocent misadventures.” The first is that they are “Ssolated”; the second is that they are unforeseeable events for which State officials are blameless. Jd. The Alabama Court of Criminal Appeals neither acknowledged nor applied the critical distinction that this Court laid out in Resweber and Baze. Instead, citing Resweber, the Court of Criminal Appeals reasoned that if it was not “cruel and unusual punishment to execute an inmate who has been subjected to a current of electricity in a previous failed execution attempt,” then a fortiori it is not cruel and unusual to allow a second execution attempt after a failure to set IV lines. Pet. App. 24a. That wholly misapplies the reasoning underlying Baze and Resweber. Properly applied to the undisputed facts in this case, Baze and Resweber point strongly to Eighth Amendment protection from the State’s second attempt to execute Mr. Smith. “Innocent misadventures,” which do not give rise to Eighth Amendment violations, are aborted execution attempts that are both isolated and unforeseeable. The State’s first attempt to execute Mr. Smith was anything but—Mr. Smith’s was the third execution in a row that the State botched or failed to complete. What’s more, the State’s attempt to execute Mr. Smith failed for the same reason as the two prior botched attempts: difficulty placing IV lines despite protracted efforts. For Mr. Smith, this meant repeated needling while strapped to a gurney for hours. Despite two identical failures, ADOC did nothing to prevent a third. It conducted no investigation, and it made no effort to ensure that past errors would not recur in its attempt to execute Mr. Smith. ADOC cannot now contend that it had no way of knowing the hot stove would burn a third time. The two consecutive failed or botched attempts demonstrate that the State’s first attempt to execute Mr. Smith (i.e., what turned out to be the third straight failed or botched execution by the State of Alabama) presented an objectively intolerable risk of harm, and the State’s and ADOC’s willful blindness to that risk forecloses any argument that they were “subjectively blameless for purposes of the Eighth Amendment.” Jd. (quoting Resweber, 329 U.S. at 470-71 (Frankfurter, J., concurring)). Second, Mr. Smith will be irreparably harmed absent a stay. See Nken, 556 U.S. at 426. There is nothing more fin