Alabama will not exe­cute eight death-row pris­on­ers by means of the prob­lem­at­ic lethal-injec­tion pro­to­col they have been chal­leng­ing, but will instead car­ry out the exe­cu­tions using lethal gas. In a Joint Motion to Dismiss the pris­on­ers’ fed­er­al lit­i­ga­tion over the state’s exe­cu­tion pro­to­col, filed on July 10, 2018, the par­ties agreed that the law­suit had been ren­dered moot by the state’s pas­sage of leg­is­la­tion autho­riz­ing exe­cu­tion by nitro­gen gas and the pris­on­ers’ elec­tion to die by nitro­gen hypox­ia. Alabama’s lethal-injec­tion process uses the con­tro­ver­sial seda­tive mida­zo­lam, which has been impli­cat­ed in numer­ous exe­cu­tions across the coun­try that have been described as ​“botched.” In October 2017, wit­ness­es to Alabama’s 35-minute exe­cu­tion of Torrey McNabb report­ed­ly ​“expressed repeat­ed con­cerns to each oth­er that he was still con­scious dur­ing the lethal injec­tion.” Alabama fed­er­al defend­er Christine Freeman, the direc­tor of the Alabama Post-Conviction Relief Project, tes­ti­fied on July 10 in sep­a­rate lit­i­ga­tion over Tennessee’s lethal-injec­tion process that she had wit­nessed McNabb gri­mac­ing and rais­ing his arm up twen­ty min­utes into the exe­cu­tion, well after the mida­zo­lam was sup­posed to have ren­dered him uncon­scious. Witnesses also report­ed that Alabama pris­on­er Ronald Smith heaved, coughed, clenched his left fist, and opened one eye dur­ing one 13-minute peri­od of his 34-minute exe­cu­tion in December 2016. After Alabama added nitro­gen gas as an option for car­ry­ing out the death penal­ty, the pris­on­ers had a June 30 dead­line to select gas as the method of their exe­cu­tion. In a nitro­gen hypox­ia exe­cu­tion, the pris­on­er breathes pure nitro­gen, which dis­places oxy­gen in the blood­stream, suf­fo­cat­ing them. Experts char­ac­ter­ized the pris­on­ers’ choice as pre­fer­ring the unknown risks of exe­cu­tion by nitro­gen gas to the known risks of exe­cu­tion by lethal injec­tion. Nitrogen gas has nev­er been used as a method of exe­cu­tion in the United States, but has been approved as an option by three states — Alabama, Mississippi, and Oklahoma. Of the three states, only Alabama leaves the choice of exe­cu­tion method to the pris­on­er. Mississippi and Oklahoma allow nitro­gen exe­cu­tions only if lethal injec­tion is held uncon­sti­tu­tion­al or is ​“oth­er­wise unavail­able,” although Oklahoma has indi­cat­ed that it is devel­op­ing a lethal gas pro­to­col to replace lethal injec­tion. According to the fed­er­al defend­er’s office rep­re­sent­ing the Alabama pris­on­ers, their clients in the case, ​“and any­one else who elect­ed the new method, can­not now be exe­cut­ed by lethal injec­tion.” Alabama still must devel­op a nitro­gen-hypox­ia pro­to­col before it can car­ry out any exe­cu­tions using that method, and the pris­on­ers have not waived their right to chal­lenge that pro­to­col. Federal pub­lic defend­er John Palombi, who rep­re­sents the pris­on­ers, said ​“While the best way to reduce the risks of botched exe­cu­tions would be to abol­ish the death penal­ty, if the death penal­ty does exist, it must be car­ried out in a con­sti­tu­tion­al man­ner with the respect and dig­ni­ty that is required of such a solemn event.” Alabama’s lethal-injec­tion pro­to­col is the most secre­tive in the nation. Palombi encour­aged the state to make the nitro­gen hypox­ia pro­to­col pub­lic ​“so that the peo­ple of the state of Alabama know what is being done in their name.”

(Ivana Hrynkiw, Alabama death row inmates elect alter­nate method of exe­cu­tion, drop lethal injec­tion suit, AL​.com, July 10, 2018; 8 Alabama Inmates Ask for Execution by Nitrogen Gas, Associated Press, July 10, 2018; Adam Tamburin, Execution wit­ness­es: Condemned writhed, gri­maced when lethal drugs entered their bod­ies, The Tennessean, July 11, 2018.) See Lethal Injection and Methods of Execution.

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