Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in Supreme Court Denies Him A Stay

After a divid­ed U.S. Supreme Court twice tem­porar­i­ly halt­ed the exe­cu­tion of Ronald Bert Smith, Jr. (pic­tured), Alabama put Smith to death on December 8 in a 34-minute exe­cu­tion in which Smith heaved, coughed, clenched his left fist, and opened one eye dur­ing one 13-minute period. 

Smith’s jury had rec­om­mend­ed by a vote of 7 – 5 that he be sen­tenced to life with­out parole, but, in a prac­tice per­mit­ted by no oth­er state, his tri­al judge over­rode that rec­om­men­da­tion and sen­tenced Smith to death. At the time his exe­cu­tion was sched­uled to begin, Smith had a stay motion and a peti­tion for cer­tio­rari pend­ing in the U.S. Supreme Court argu­ing that judi­cial over­ride vio­lat­ed his Sixth Amendment right to a jury tri­al and was uncon­sti­tu­tion­al­ly arbi­trary under the Eighth Amendment. 

After Alabama announced its inten­tion to pro­ceed with the exe­cu­tion despite the pend­ing peti­tion, Justice Thomas grant­ed a tem­po­rary stay, a pro­ce­dure to allow time for the full Court to act. Half the Court — enough to review a case — vot­ed to grant Smith a stay, but five votes are required to halt an exe­cu­tion. Smith’s lawyers then filed a motion for recon­sid­er­a­tion, crit­i­ciz­ing as arbi­trary the rule that allows four votes to grant review of a case, but requires five to stay an exe­cu­tion. His motion argued that when four jus­tices vote to hear a case, ​“all cer­tio­rari peti­tion­ers, pub­lic and pri­vate par­ties in civ­il and crim­i­nal cas­es of every kind” are enti­tled to have their cas­es reviewed except con­demned pris­on­ers fac­ing an immi­nent exe­cu­tion. He asked the Court to recon­sid­er his stay motion “[b]ecause the Court’s incon­sis­tent prac­tices respect­ing 5 – 4 stay denials in cap­i­tal cas­es clash with the appear­ance and real­i­ty both of equal jus­tice under law and of sound judicial decision-making.” 

Justice Thomas grant­ed anoth­er tem­po­rary stay so the full Court could con­sid­er that motion; after about an hour, the Court denied the request and also reject­ed a last-minute chal­lenge to the state’s lethal injec­tion pro­ce­dure. Alabama used a three-drug pro­ce­dure in its exe­cu­tion, begin­ning with mida­zo­lam, a seda­tive that has con­tributed to botched exe­cu­tions in sev­er­al oth­er states and that was the sub­ject of a chal­lenge before the Supreme Court in 2015. Though mida­zo­lam is intend­ed to ren­der the inmate uncon­scious and there­fore pro­tect against the pain and suf­fer­ing that would be expe­ri­enced from the sec­ond and third drugs, wit­ness­es report­ed that Smith showed signs of con­scious­ness after it was administered.