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Medical Expert: Billy Ray Irick Tortured to Death in Tennessee Execution

Billy Ray Irick (pictured) was tortured to death during his August 9, 2018 execution in Tennessee, according to one the nation's leading anesthesiologists. In an affidavit submitted to the Tennessee Supreme Court on September 6 as part of an appeal filed by state death-row prisoners challenging Tennessee’s execution process, anesthesiologist Dr. David Lubarsky, the Vice Chancellor for Human Health Sciences at the University of California-Davis Health, said Irick was not properly anesthetized during his execution and experienced the torturous effects of the second and third lethal-injection drugs while still conscious. Lubarsky, who previously testified during a lower court hearing on the prisoners’ lethal-injection challenge, examined witness descriptions of Irick's execution and concluded “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” Witnesses reported that Irick choked, moved his head, and strained his forearms against restraints, all of which, Dr. Lubarsky said, are signs that he was able to feel the effects of the drugs. Lubarsky also noted that prison officials taped Irick's hands—a step unnecessary to the execution because Irick’s wrists were already restrained—preventing witnesses from observing movements of the fingers and hands that would have been “a clear indicator” that he was not anesthetized. The second and third drugs used in Tennessee are known to be excruciatingly painful if a prisoner is not fully unconscious. A court pleading filed by Kelley Henry, an attorney representing Tennessee’s death-row prisoners in their legal challenge to the execution protocol, graphically described the execution process. “This case is about whether it is constitutional to inject a human with a small bottle of acid—which will destroy the lining of their lungs and cause them to drown in blood—and then to inject them with a paralytic that will leave them conscious but expressionless—unable to speak or scream—feeling as if they are buried alive, and finally to stop their heart with an injection that will, in their last minute of life, cause them to chemically burn alive.” Prior to Irick’s execution, U.S. Supreme Court Justice Sonia Sotomayor dissented from a denial of a stay, writing, “In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis.” Records from Irick’s execution also indicate that the state violated its own execution protocol by failing to prepare an additional dose of midazolam, the drug used to sedate him. New filings in the lethal-injection suit said that the state’s actions showed that the “protocol is meaningless” and “creates a substantial risk of severe pain and suffering.” Tennessee prosecutors filed a response on September 13 asking the court not to consider Lubarsky's declaration, saying his opinion was based on hearsay and hadn't been subject to cross-examination. The Tennessee high court has removed the case from the state’s intermediate appellate court and set an expediting briefing schedule, an unusual move that Tennessee Supreme Court Justice Sharon Lee criticized as a “rocket docket” that undermines the possibility of meaningful appellate review. On September 14, the Tennessee Supreme Court issued an order deferring a ruling until after oral argument on the appeal of the lethal injection challenge on October 3.


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Amidst Nebraska Execution-Secrecy Controversy, California Judge Lets Execution-Access Lawsuit Proceed

As lawyers for Nevada told their state supreme court that a controversial Nebraska execution had been carried out without problems, a federal judge issued a ruling allowing a lawsuit to proceed that would force California to allow media witnesses to observe executions in that state in their entirety. The developments in the cases in the two states highlight an ongoing controversy over the lack of transparency and accountability in recent lethal-injection executions. Attorneys representing the Nevada Department of Corrections said in a court filing on August 16, 2018 that media witnesses to Nebraska's four-drug execution of Carey Dean Moore, which used three of the drugs Nevada plans to use to execute Scott Dozier, "reported no complications, only some coughing before Moore stopped moving." They failed to report to the court that the witnesses did not see when the lethal-injection chemicals had been administered or what lethal-injection expert, Fordham Law Professor Deborah Denno, called "[t]he parts of the execution that would be most problematic" - when the IV lines are set and the period after the final drug is administered. Those occurred behind drawn curtains. Contrary to what Nevada's lawyers told the court, the Lincoln Journal-Herald, compiling witness observations to the execution, wrote: "Nebraska witnesses actually reported Moore coughed, his diaphragm and abdomen heaved, he went still, then his face and fingers gradually turned red and then purple, and his eyes cracked open slightly. One witness described his breathing as shallow, then deeper, then labored." Nebraska College of Law Professor Eric Berger, who studies the death penalty, called the eyewitness reports "somewhat troubling." He said, "It's certainly possible that everything went smoothly and humanely, but it's also possible that it didn't ... We just don’t have enough information to make that determination." Similar concerns with the ability of the public to view potentially problematic executions animated the federal court's ruling on the California execution process. Noting that the public has a First Amendment right to “view executions from the moment the condemned is escorted to the execution chamber," federal district court judge Richard Seeborg denied a motion filed by lawyers for the California Department of Corrections seeking to dismiss a lawsuit challenging administrative rules that bar the public from viewing the preparation and injection of lethal drugs and to keep the curtain open through the completion of the execution process. Christopher S. Sun, who represented media plaintiffs The Los Angeles Times, KQED, and the San Francisco Progressive Media Center, called public access to executions "critical to informing our national dialogue about the death penalty" and said the suit was filed to ensure that the public knows what actually happens during an execution. Sun said current California state regulations afford execution personnel discretion during the execution to draw the curtain on the window through which witnesses see the execution and require the curtain to be closed and the public address system turned off if three doses of the lethal-injection drugs fail to kill the prisoner, denying important information to the public in a matter of heightened public interest. In allowing the suit to proceed, the court said the media had made a threshold showing that it was entitled to observe prison personnel "preparing the chemicals[,] ... the process of administering the chemicals," the entire execution itself, and "the administration of medical care ... in the Lethal Injection Room" in the event of a failed or botched execution. The California lawsuit is not the first of its kind. In 2016, an Arizona federal court ruled that the First Amendment affords the public the right to view executions in that state in their totality.


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Nebraska Executes Carey Dean Moore in First Execution in 21 Years

On August 14, 2018, more than two decades after last putting a prisoner to death, Nebraska executed Carey Dean Moore (pictured). The execution—which used an untested drug formula of diazepam (the sedative Valium), fentanyl citrate (an opioid painkiller), cisatracurium besylate (a paralytic), and potassium chloride to stop the heart—took 23 minutes. It was the state's first execution ever by lethal injection. The first drug, diazepam, was administered at 10:24 am, and Moore, who had spent 38 years on death row, was pronounced dead at 10:47. Associated Press reporter Grant Schulte, a media witness who kept a timeline of events during the execution, reported that on three occasions prison officials dropped a curtain that prevented the witnesses from seeing portions of the execution, and that towards the end of the procedure Moore's face turned reddish, then purple. Joe Duggan, a journalist for the Omaha World-Herald, said the media witnesses could see the IV-line connected to Moore's arm, but could not see into the room where prison personnel controlled the flow of the drugs. "[I]t was not possible for us to know exactly when each drug was administered," he said. Brent Martin, reporting for Nebraska Radio Network, compared Moore's executions to the 13 executions he had previously witnessed in Missouri, saying "this was much longer." He also noted that the Nebraska team "approached it a bit differently" than had corrections officials in Missouri, where executions had "become routine." But, he said, "I didn't get any sense that it did not go other than how they planned it to go." Later, prison officials acknowledged the curtain had been lowered after the last drug was administered, preventing the reporters from witnessing Moore's reaction to that drug. Before the execution, Moore gave a written final statement in which he apologized to his younger brother, Don, for "bringing him down," and asked opponents of the death penalty to work on behalf of four men on Nebraska's death row who he said are innocent. Capital punishment has been a contentious issue in Nebraska. In 2015, the state legislature repealed the death penalty over the veto of Governor Pete Ricketts. Ricketts then sponsored a voter referendum to reinstate the death penalty, which succeeded in 2016. The state's last execution had been in December 1997, when Robert Williams was executed in the state's electric chair. The nearly 21-year period between executions in the longest time any state has gone between executions in modern U.S. history.


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Florida Justices Halt Execution as Handwritten Notes Contradict Police Testimony

The Florida Supreme Court has halted the execution of Jose Antonio Jimenez (pictured), scheduled for August 14, 2018. The unanimous one-page order issued by the court on August 10 did not explain the reasons the justices granted the stay. However, Jimenez’s motion for a stay referenced 80 pages of police records that, Jimenez’s lawyer said, had not previously been provided to the defense. Those records—which were part of 1,000 pages of documents turned over to the defense two weeks before the scheduled execution—included hand-written notes by the investigating detectives that appear to contradict pre-trial testimony police had given in the case. The motion, filed by Jimenez's lawyer, Marty McClain, said the “previously unseen notes" contained "surprising and downright shocking information” that the lead detective (identified as a Detective Ojeda) and a second police investigator (identified as Detective Diecidue) gave “false and/or misleading” testimony “in order to facilitate Mr. Jimenez’s conviction” when they were deposed by Jimenez’s trial counsel. McClain told The News Service of Florida, “[t]he new documents show dishonest cops,” which has added significance in this case because Jimenez has maintained his innocence “and the conviction is premised on Ojeda telling the truth.” Jimenez also sought a stay pending the United States Supreme Court’s disposition of a Missouri death-penalty case, Bucklew v. Precythe, that could clarify the standard for determining when a state’s lethal-injection protocol is unconstitutional. Jimenez has argued that Florida’s use of the drug etomidate as a sedative during three-drug executions creates an unconstitutional risk of a torturous death. During Florida’s last execution, Eric Branch screamed when the execution drugs were administered. McClain said that expert testimony in another case had indicated that a quarter of executions using etomidate could result in prisoners screaming in pain. “Is it OK to have your condemned people scream 25 percent of the time?,” McClain said. “And what about the torture to those who are next, who know that 25 percent of the time people are in pain and screaming? Are they going to be the one?” The Florida Supreme Court has set a schedule for briefs to be filed in the case, with briefing concluding on August 28. The court will then decide whether it will hear oral argument in the case.


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Tennessee Executes Billy Ray Irick in First Execution Since 2009

Over sharp dissents by justices of the U.S. and Tennessee Supreme Courts and lingering questions about the prisoner's history of mental illness and the efficacy of the state's lethal-injection protocol, Tennessee executed Billy Ray Irick (pictured) on August 9. He was the first person executed by the state since 2009. Justice Sonia Sotomayor described the process as a "rush to execute" and a descent into "barbarism." In the days leading up to the execution, the Tennessee Supreme Court and Tennessee Governor Bill Haslam rejected Irick's request for a stay or clemency. The state Supreme Court ruled on August 6 that Irick had failed to show his challenge to the execution protocol was likely to succeed on appeal, a requirement for the court to allow the lawsuit to proceed. Judge Sharon Lee dissented from the majority decision, writing, "The harm to Mr. Irick of an unconstitutional execution is irreparable. Yet the harm to the State from briefly delaying the execution until after appellate review is minimal, if any." Governor Bill Haslam declined to exercise his clemency power in Irick's case, saying that the judicial review of the case was "extremely thorough." Gene Shiles, Irick's attorney disagreed: "The truth is no facts relating to Billy’s state mind at the time of the offenses — including his hallucinations and talking to 'the devil' were ever considered by a single court on the merits. These facts, the most important to reasoned decisions as to guilt and punishment, were instead 'defaulted' and never weighed because they were determined to be untimely — raised too long after the trial." The U.S. Supreme Court denied a stay, but Justice Sonia Sotomayor strongly dissented from that denial, writing, "In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this 'rush to execute' without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism." The Tennessean reported that Irick's execution was "certain to fuel a fierce national debate surrounding the drugs used to kill him, and if they amount to state-sanctioned torture." Federal public defender Kelley Henry said Irick exhibited signs of pulmonary edema during an execution that took more than twenty minutes. Henry said media witnesses had reported that “Mr. Irick ‘gulped for an extended period of time,’ was ‘choking,’ ‘gasping,’ ‘coughing,’ and that ‘his stomach was moving up and down.’ Witnesses described movement, including movement of the head, after the consciousness check. This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” Henry said. Media reports indicated that the second and third drugs, a paralytic agent and potassium chloride, would cause a pain similar to drowning and being burned alive. 


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Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use of Drugs in Nevada

Less than a month after a Nevada court halted the execution of Scott Dozier in response to a lawsuit filed by generic-drug manufacturer Alvogen, another drug company has sued Nebraska, seeking to block the use of its medicines in an upcoming execution. The German-based pharmaceutical company Fresenius Kabi filed suit in Nebraska federal court on August 8, 2018 alleging that Nebraska intended to execute Carey Dean Moore on August 14 using drugs manufactured by the company that had been obtained "through improper or illegal means." The lawsuit said the company's distribution contracts with authorized wholesalers and distributors prohibit sales to departments of corrections, and it alleges that Nebraska obtained the drugs "in contradiction and contravention of the distribution contracts," most likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson said the state's execution drugs “were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot be verified because of the state's secrecy practices. The state has refused to identify the source of the drugs it intends to use in Moore's execution, but two of the drugs—the paralytic, cisatracurium, and potassium chloride, the drug used to stop the heart—are manufactured by Fresenius Kabi and only that company makes vials of potassium chloride in the size obtained by the state. 

Nebraska is one of fifteen death-penalty states that have joined in an amicus curiae ("friend of the court") brief in the Nevada Supreme Court on August 6, 2018 urging the court to overturn a restraining order that has prevented Nevada from carrying out executions using supplies of the drug, midazolam, produced by the pharmaceutical company Alvogen. Alvogen's suit alleges that Nevada had obtained the midazolam "by subterfuge" and “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution. The company's pleadings accused Nevada of “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug and covering up its true intention by having the drug shipped to a state office several hundred miles away from the prison. In addition to issuing the restraining order, the Nevada trial court stayed Dozier's July 2018 execution. Like Fresenius Kabi, Alvogen alleges that the use of its products in executions would damage its corporate reputation and adversely affect investor and customer relations. The amicus brief was filed by 15 of the 30 other states that authorize capital punishment, all with Republican attorneys general—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penalty states with Democratic attorneys general did not join the pleading, nor did six other states with Republican attorneys general. The pleading claims, without providing any factual support, that Alvogen's lawsuit is the "latest front in the guerilla warfare being waged by anti-death-penalty activists and criminal defense attorneys to stop lawful executions." The state officials warn that, if the Nevada Supreme Court allows Dozier's stay of execution to stand, activists will "flood" the courts in other states with similar "meritless" challenges. In 2017, the drug distributor McKesson sued Arkansas to prevent the state from using a supply of the paralytic drug, vecuronium bromide, in executions, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The brief asserts that "Alvogen’s meritless claims mirror those rejected by the Arkansas Supreme Court" in McKesson case. However, court records reflect that the Arkansas Supreme Court actually returned McKesson's case to the trial court for further evidentiary development and the case remained active until the expiration of the state's supply of vecuronium bromide rendered the case moot in the Spring of 2018.


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Public Health Experts, Generic-Pharmaceuticals Association Warn Lethal-Injection Policies Put Public Health at Risk

State lethal-injection practices may have collateral consequences that place public health at risk, according to briefs filed in the U.S. Supreme Court on July 23, 2018 by public health experts and an association representing generic drug manufacturers. In amicus (or friend-of-the-court) briefs filed in connection with a challenge brought by death-row prisoner Russell Bucklew (pictured) to Missouri's use of lethal injection, the Association for Accessible Medicines (AAM)—a professional association representing generic and biosimilar drug manufacturers and distributors—and eighteen pharmacy, medicine, and health policy experts warn that questionable state practices in obtaining and hoarding drugs for use in executions undermine law enforcement efforts to combat black markets in controlled substances and jeopardize the availability of some medicines for their intended therapeutic use. The AAM, which takes no position on the death penalty or the specific issues in Bucklew's case, told the court that its membership "strongly oppose the use of their medicines ... to carry out executions." The Association wrote: "Like doctors and other medical professionals, many drug manufacturers (including the members of AAM) recognize that they have an ethical obligation to ensure that their products are used only to heal, not to harm. Yet despite many manufacturers’ best efforts, drugs that are essential to the healthcare system—including some that are in short supply—have been diverted to state prison systems for use in capital punishment. AAM and its members cannot support such misuse of their products." The AAM brief stressed that their products are developed and tested for particular approved medical uses, but in executions, "powerful injectable drugs such as sedatives and barbiturates are being used at untested levels for an untested purpose, often without adequate physician supervision." The AAM called "the off-label use of these prescription drugs" in executions "medically irresponsible." Further, they wrote, some of the drugs used in executions that "are considered 'essential medicines' by the World Health Organization ... are in short supply," but have been diverted from medical use by death-penalty states. Citing a 2017 study by The Guardian, the AAM said "four states had stockpiled enough of these drugs to treat 11,257 patients—if the drugs were used as intended for medical treatment rather than in executions." Eighteen public health experts filed a brief in support of Bucklew's lethal injection challenge. The portion of that brief addressing public health issues warned that "States have created serious public health risks in their efforts to conduct lethal injections" and that continued improper practices "could lead to a public health crisis." The health experts argue that states have violated federal law by importing unapproved drugs for use in executions, obtained compounded drugs of questionable quality from unlicensed and secret pharmacies, breached supply chain controls and misled healthcare providers to obtain drugs for executions, and employed secrecy laws to "hide potentially illegal and unsafe conduct from scrutiny." These practices, they say, circumvent and undermine the country's "carefully and extensively regulated [medical] supply chain .... The result is twofold: it undermines federal laws that protect the public health, and it circumvents pharmaceutical companies’ ability to ensure the safety and effectiveness of drugs in the supply chain." 


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Arkansas Prisons Suspend Search for Execution Drugs, Ask For Even Broader Drug Secrecy Law

Unable to legitimately purchase lethal-injection drugs or carry out executions without revealing who manufactured its drugs, Arkansas has suspended efforts to obtain a new supply of execution drugs until state law is amended to keep secret the identity of the drug manufacturers. The Arkansas Department of Corrections confirmed on July 17, 2018 that it had halted its search for execution drugs earlier this year following a November 2017 Arkansas Supreme Court decision requiring the state to disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions. Those labels permitted the public and the pharmaceutical industry to identify the manufacturers of the execution drugs, who then sued the state or charged state officials with violating the companies' contract rights. Solomon Graves, spokesperson for the Department of Corrections said the department has been working with the governor's and attorney general's offices on amending the Arkansas Method of Execution Act to prevent disclosure of information that would identify drug manufacturers. "We are not actively looking for additional drug supplies at this time," he said. Arkansas does not currently have any execution dates set, but it scheduled eight executions in an unprecedented 11-day period in April 2017 in an attempt to carry out the executions before its supply of the sedative midazolam expired. Four of the executions went forward, but not before controversy surrounded the state's purchase of all three drugs in its execution protocol. Prior to the executions, Associated Press learned that the state's second drug—the paralytic vecuronium bromide—had been manufactured by Hospira, a subsidiary of the drugmaker Pfizer. Pfizer, which made international news with its May 2016 announcement of strict distribution controls designed to block states from obtaining and using its medicines in executions, informed its drug distributor, McKesson Medical-Surgical, that the sale violated their distribution agreement. McKesson then sued Arkansas, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The companies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the manufacturers of the potassium chloride that Arkansas used as the third drug in its executions—also attempted to intervene in federal litigation to stay the April executions, writing that "use of their medicines for lethal injections violates contractual supply-chain controls that [they] have implemented ... to prevent the sale of their medicines for use in capital punishment." Following the expiration of its supply of midazolam, the director of the Department of Correction, Wendy Kelley, purchased a new supply of the drug in cash. The package identified a New York company, Athenex, as the manufacturer, who said Arkansas acquired the drug in violation of the company's agreements with distributors barring the use of its products in executions. McKesson's lawsuit remained active until the state's supply of vecuronium bromide expired this Spring and the parties agreed the suit had become moot. However, the expiration of the drug left Arkansas without the means to carry out any executions until it obtains a new supply of the paralytic. Graves said that the Department of Corrections has no intention of resuming its search for execution drugs until the state legislature exempts the suppliers and manufacturers from the state's public disclosure laws. The legislature does not meet until 2019, at which point the other two execution drugs will have expired.


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Court Order: No Executions in Louisiana For Another Year

A Louisiana federal court judge has ordered that executions in the state be stayed for at least another year. On July 16, 2018, in proceedings brought by Louisiana death-row prisoners challenging the state's lethal-injection protocol, U.S. District Court Judge Shelly Dick granted a request by state officials to extend by one year the temporary stay of execution that has been in effect in Louisiana since 2014. Jeffrey Cody, the state's lawyer in the case, told the court that continuing the lethal-injection litigation now would be "a waste of resources and time." He asked for the one-year extension "because the facts and issues involved in this proceeding continue to be in a fluid state." The request for an extension has triggered a partisan dispute among Louisiana state elected officials. Jeff Landry, the state's Republican Attorney General, blamed Democratic Governor John Bel Edwards for Louisiana's inability to execute prisoners and for facilitating a court ruling further delaying executions. In a July 18 letter to the Governor that Landry simultaneously distributed to the media, the attorney general said he was withdrawing his office from participating in the lethal-injection lawsuit and would no longer represent the Department of Corrections in that case. Landry claimed that Edwards was "unwilling[ ] to proceed with any executions" and called that "the biggest obstacle" to resuming executions in the state. Edwards called the attorney general's actions "political grandstanding," saying "[h]e issued this release today without trying to contact me at all." He said, "[i]n the one year since the state last requested a stay, which the Attorney General signed on and supported at the time, nothing has changed – the drugs are not available and legislation has not passed to address concerns of drug companies or offer alternative forms of execution." Louisiana currently authorizes the use of a one-drug protocol of the anesthetic pentobarbital, with a backup two-drug method consisting of the sedative midazolam and the painkiller hydromorphone. According to Department of Corrections spokesperson Ken Pastorick, the state does not have a supply of any of those drugs. The latest stay marked the fourth time since 2015 that the state has requested a delay of the lethal injection litigation. By the time Judge Dick's order expires on July 18, 2019, it will have been nearly ten years since the last execution in Louisiana, which was carried out on January 7, 2010. Bobby Jindal, a Republican, was governor from 2010 until January 2016, after the first federal stay of execution was in effect. 


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Alabama Prisoners End Execution Lawsuit, State Will Drop Lethal Injection in Favor of Nitrogen Gas

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."


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