Alabama inmate's lawyers seek to block his execution by nitrogen gas, citing problems with controversial method
Days after Alabama scheduled its third execution by nitrogen hypoxia, lawyers for the latest prisoner set to die by this method have asked a federal judge to block the execution order.
In a motion filed Tuesday night in Alabama district court, attorneys representing Carey Dale Grayson challenged the constitutionality of the state's execution protocol for nitrogen gas, a novel and highly controversial approach that has only been used once before in January 2024. Grayson was convicted of murder and sentenced to death in Alabama in 1996.
They argued that Grayson shouldn't have to be subjected to a procedure that witnesses described as violent, prolonged and generally disturbing to watch after the first execution of Kenneth Smith, who was on death row after being convicted in a murder-for-hire plot.
"Following Kenneth Smith's execution by nitrogen hypoxia—the first in history—and which, by nearly all accounts, was cruel and unusual, Alabama is doubling down by setting execution dates using the same protocol," Grayson's attorneys wrote in the latest court filing. "Rather than investigating what went wrong—as other states have done following issues with executions—Defendants have chosen to ignore clear and obvious signs the current Protocol contains major problems that will result in more unconstitutionally torturous executions if it continues to be employed."
Grayson, 49, will be executed at the William C. Holman Correctional Facility in southern Alabama on Nov. 21, if the state's plan unfolds as intended. Alabama Gov. Kay Ivey announced Monday that Grayson would be put to death by nitrogen hypoxia, a method the state authorized in 2018 as an alternative to the lethal injections.
Attorneys said that Grayson, and 180 other inmates on death row in Alabama at the time were given a choice in July 2018 to opt for nitrogen hypoxia as their preferred execution method. The decision needed to be made within a 30-day window and did not provide inmates or their attorneys any developed protocol or insight into how an execution, under those circumstances, would work. Grayson did select nitrogen hypoxia as his preference, his attorneys said.
Grayson was one of four teenagers convicted in the brutal torturing, killing and subsequent mutilation of 37-year-old Vickie Deblieux in 1994. Grayson and two others, Kenny Loggins and Trace Duncan, were sentenced to death upon their convictions for the murder. Loggins and Duncan later had their sentences reduced to life imprisonment without the possibility of parole, because a 2005 decision by the U.S. Supreme Court ruled against the death penalty for offenders who were younger than 18 when they committed a capital crime. The fourth teenager, Louis Christopher Mangione, was also sentenced to life imprisonment, but Grayson's death sentence continued to stand because he was 19 years old at the time of Deblieux's murder.
Alabama's execution protocol for nitrogen hypoxia is heavily redacted, with key elements hidden from the public, the state's death row inmates and the attorneys who represent them. But there is no indication based on portions of the protocol that are available to view, or statements from those who witnessed Alabama's first execution in January, to suggest that inmates who die by this method are given an anesthetic or sedative prior to the administration of nitrogen gas — as they would be, for example, prior to receiving a lethal injection.
Alan Eugene Smith, the second death row inmate set to die by nitrogen hypoxia in Alabama this year, on Sept. 26, said in his own appeal to the state earlier in the summer that he did not understand when he opted for the nitrogen protocol that he would not be unconscious beforehand. In a lawsuit for Alan Smith, attorneys said the inmate had accepted his choice years ago to die by nitrogen hypoxia but argued that he should not have to endure the same procedure that played out in January. Those filings show that his attorneys eventually reached a "confidential settlement" with the state that prompted them to end the suit.
It was unclear from the filings whether Alabama had agreed to alter its nitrogen gas protocol for Alan Smith, who earlier had pressed for changes to the respirator and other elements of the protocol. Alabama Attorney General Steve Marshall said in a news release that the settlement "confirms that Alabama's nitrogen hypoxia system is reliable and humane."
Nitrogen hypoxia is a term invented for U.S. executions, referring to a process where an inmate is forced to inhale high concentrations of nitrogen gas through a respirator until asphyxiation occurs. Although nitrogen is present in the atmosphere and safe to breathe, inhaling the chemical at high levels depletes the oxygen in the environment. That lack of oxygen in turn results in suffocation as well as complete organ failure. Alabama officials had touted the method as safe, painless and efficient, despite calls from critics that aired serious concerns about its potential to cause unnecessary suffering and harm.
Along with Oklahoma and Mississippi, Alabama authorized the use of nitrogen gas as an execution method after a shortage of drugs typically used for lethal injections. Within the last decade or so, several companies that manufacture those drugs have stopped selling them to state corrections departments to avoid being involved in executions.
Following a series of botched lethal injections that smirched the Alabama Department of Corrections' reputation, the state became the first in the U.S. to carry out an execution using nitrogen gas with Kenneth Smith's on Jan. 26.
Kenneth Smith and Alan Eugene Smith were both among the inmates who had survived botched lethal injections in Alabama.
Witnesses, including several reporters in the room, recalled in individual accounts that the inmate during that execution writhed and shook for several minutes in seizure-like spasms, appearing to struggle for as long as 10 minutes after administration of nitrogen gas began. Skeptics had already raised potential issues with Alabama's nitrogen protocol, like the fact that the face mask could allow oxygen to seep in and draw out the suffocation.
Alabama authorities said that it was Kenneth Smith who caused problems by attempting to hold his breath when the execution started. And, despite questions and criticisms from the public, Marshall, the Attorney General, denied charges that the nitrogen procedure did not go over as planned, characterizing the ordeal as "textbook."
Grayson's attorneys on Tuesday said not enough evidence exists one way or the other to support the efficacy or humanity of nitrogen hypoxia.
"The data set for nitrogen executions is small—one," the attorneys wrote. "However, that execution has provided clear results. Alabama's present method of using nitrogen for executions does not work the way Defendants claim, and carries an unacceptable risk of conscious suffocation, in violation of the Eighth Amendment."
Findings from an autopsy that the Alabama Department of Forensic Sciences conducted on Kenneth Smith's body after the execution were included in the Tuesday night filing by Grayson's attorneys. The autopsy showed Smith had blood and fluid in his lungs after the execution, with closer inspection of the lungs showing "marked congestion and edema with dark maroon blood." It also found a "small amount of frothy fluid" in the tracheobronchial tree, the network of airways responsible for moving air from the outside environment into the lungs. One expert, who was hired by Grayson's legal team to review the autopsy report, called the findings "highly concerning," according to court filings.
CBS News contacted the Alabama Attorney General's Office for comment but did not receive an immediate response.