Whether the Eighth and Fourteenth Amendments prohibit a state from executing an inmate using an untested nitrogen hypoxia method that poses a substantial risk of serious harm and violates equal protection principles

No question identified. : BACKGROUND The Alabama Department of Corrections (ADOC) intends to execute Kenneth Eugene Smith during a time frame that begins at 12:00 a.m. on January 25, 2024. It intends to do so using nitrogen hypoxia—a method that has never been attempted by any State or the federal government—using procedures set forth in a protocol that has never been tested. It will be the second time ADOC has attempted to execute Mr. Smith, having already subjected him to cruelty and pain when it tried and failed to execute him by lethal injection in November 2022. Indeed, Mr. Smith was selected for execution even though he has not been able to fully exhaust claims raised in a separate 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 ahead despite the mounting evidence of Mr. Smith’s escalating posttraumatic stress disorder (PTSD) symptoms, which create a substantial risk that he will vomit during the execution and asphyxiate, causing prolonged or superadded pain and suffering. Mr. Smith first learned that he would be executed by nitrogen hypoxia on August 25, 2023, when the State moved in the Alabama Supreme Court for authority to execute him by that method. That motion was filed just days before Defendants would have been required to respond to discovery requests in Mr. Smith’s then-pending litigation about ADOC’s failed execution attempt. Also on August 25, 2023, ADOC released to the public and Mr. Smith a heavily-redacted version of the Nitrogen Hypoxia Protocol it intends to use during the execution. Five days later, Mr. Smith’s counsel requested an unredacted version of the Protocol so that he could make a complete assessment of how ADOC planned to carry out his execution. ADOC refused. Mr. Smith nevertheless investigated what was readable and filed the instant action on November 8, 2023. On November 20, 2023, he filed a preliminary injunction motion supported by expert declarations and other evidence. He did not receive an unredacted version of the Protocol until November 22, 2023, after the district court ordered that it be produced. Given ADOC’s decision to release its novel and highly-redacted Protocol on the same day it moved to set Mr. Smith’s execution, as well as its months-long refusal to provide an unredacted version, Mr. Smith was forced to complete discovery and present his evidence about ADOC’s novel Protocol in an extremely condensed time frame. Thus, the exigent nature of the instant Petition for a Writ of Certiorari is of ADOC’s own making. Mr. Smith nevertheless presented evidence in support of his preliminary injunction motion showing that he is likely to succeed on his claims that ADOC’s planned execution by nitrogen hypoxia will violate his constitutional rights. Moreover, the equities weigh strongly in favor of a stay because of the compelling need to ensure that ADOC gets it right this time. ARGUMENT To receive a stay, Mr. Smith must make a strong showing that he is likely to succeed on the merits of his claim. Nken v. Holder, 556 U.S. 418, 426 (2009). This Court also balances the harm to the parties and the public interest. Jd. As set forth below, Mr. Smith satisfies those factors. First, Mr. Smith is likely to succeed. See Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (to warrant a stay pending disposition of a petition for a writ of certiorari, a party must demonstrate “a reasonable probability that this Court will grant certiorari” and “a fair prospect that the Court will then reverse the decision below”) (quotation marks omitted). Regarding his Eighth Amendment claim, Mr. Smith is likely to succeed because he has demonstrated that ADOC’s planned use of a one-size-fits-all mask creates a substantial risk that he will be left in a persistent vegetative state, experience a stroke, or asphyxiate on his own vomit. Feasible and r