Federal court hears arguments for blocking third nitrogen execution

Alabama is about to carry out the nation’s third execution using nitrogen gas. Still, the method is under scrutiny, with critics warning that it has not been adequately tested or investigated for all potential risks.

Carey Dale Grayson, who was convicted of killing Vickie Deblieux in 1994, will be executed Thursday. This will be the final test of Alabama’s adoption of nitrogen hypoxia as an execution method, which the state began using in January. The process involves placing a gas mask over the prisoner’s face and replacing breathing air with pure nitrogen, leading to death by asphyxiation.

The 11th U.S. Court of Appeals heard arguments Monday from both Grayson’s defense team and the Alabama attorney general’s office in an effort to block the execution. The dispute centers on the risks of extreme physical and mental suffering, with John Palombi, a lawyer with the Federal Public Defender’s Office, arguing that the nitrogen method causes the prisoner to experience painful asphyxiation before unconsciousness sets in.

“In the history of American execution methods, there is no other method that involves asphyxiation if done correctly,” Palombi said.

This claim has sparked debate, with some appellate judges skeptical of this claim. A panel judge on Monday questioned how nitrogen hypoxia differed from the gas chamber, which Palombi said is another cause of death.

Gas chambers release gas that leads to death by poisoning. Nitrogen mimics the feeling of oxygen as an odorless and colorless gas, and only when the person breathing it begins to feel its effects can he or she notice a difference. Palombi argued that this moment of feeling the consequences would constitute terror, which is an element of cruel and unusual punishment.

“Obviously in a lethal injection execution or an electrocution execution there is fear and anxiety and all before an execution begins. Here there is more than that because of the suffocation that starts afterwards,” Palombi said.

Robert Overing, deputy attorney general for Alabama, responded, claiming that nitrogen hypoxia does not cause pain and that death occurs quickly from unconsciousness.

‘Here the condemned prisoner has at most the knowledge that he is about to suffocate, and all methods involve some knowledge of death. All methods, except lethal injection, involve an unconscious prisoner,” Overing said.

Experts testifying on behalf of the state had predicted that nitrogen gas would render a prisoner unconscious within 10 to 40 seconds, but witnesses at the first two nitrogen executions in Alabama reported disturbing signs of fear. The media noted that the prisoners appeared to suffer from involuntary muscle cramps and labored, irregular breathing for several minutes after the mask was applied.

The state has insisted that these movements were involuntary and part of the process, with some officials suggesting that Kenneth Smith, the first person put to death with nitrogen, may have held his breath, delaying the onset of unconsciousness .

“With regard to the executions of Smith and Miller, the district court’s final conclusion that death occurred within minutes and consciousness was rapid was well supported by the eyewitness and expert testimony,” Overing said.

The 11th Circuit affirmed the original ruling in its order Monday afternoon. The appeals court ruling also rejected Grayson’s request to be given sedatives before his execution, as the combinations had never been tested.

“And based on these findings, the court did not abuse its discretion in concluding that Mr. Grayson failed to demonstrate a substantial likelihood of success in his claim that aspects of the Nitrogen Hypoxia Protocol violate the Eighth Amendment,” the ruling reads.