An Alabama death row inmate says the courts should allow him to argue that getting shot would be a less painful way to die than enduring the state’s current execution protocol.
In a filing with the 11th Circuit Court of Appeals on Friday, attorneys for Thomas Arthur, convicted in 1982 in a murder-for-hire scheme, say the sedative used in Alabama’s lethal injection procedure could possibly trigger a heart attack before the administration of the lethal drugs in the procedure. Arthur’s attorneys said in the filing a district court improperly denied him the ability to argue for alternative methods of execution — such as a firing squad, a different sedative or changes to the current protocol.
“Absent this court’s intervention, Mr. Arthur will soon be executed without having been afforded the chance to prove that Alabama’s method of execution is highly likely to subject him to agonizing pain,” the filing stated.
The Alabama Supreme Court earlier this month set a Nov. 3 execution date for Arthur. Mike Lewis, a spokesman for the Alabama attorney general’s office, said they had no comment. Bob Horton, a spokesman for the Alabama Department of Corrections, said in a statement the department “is prepared to carry out the execution as ordered by the Alabama Supreme Court.”
The filing, the latest in a years-long challenge brought by Arthur against the state’s death penalty, follows a July ruling that dismissed his challenge. Arthur’s attorneys want the circuit to send the case back to Alabama for further consideration.
Arthur first filed suit over the state’s methods of execution in 2011. The inmate argued that the sedative in the procedure — first pentobarbital, then sodium midazolam — wouldn’t render him unconscious in time to avoid the pain associated with rorcuronium bromide, which paralyzes the muscles, or potassium chloride, which stops the heart. Arthur’s attorneys said that violated his Eighth Amendment protections against cruel and unusual punishment.
Attorneys for Arthur also said Alabama Department of Corrections officials didn’t regularly apply a consciousness test to inmates before administering the last two drugs in the execution protocol, a violation of his 14th Amendment due process rights.
Arthur won several stays of execution while his challenge and others to the constitutionality of the sedatives used in the procedure went forward. In 2015, the U.S. Supreme Court ruled in Glossip v. Gross, a challenge to Oklahoma’s use of midazolam, that those challenging the constitutionality of an execution method had to propose one that would be less painful.
The inmate tried to argue that the state should use pentobarnital instead of midazolam at a trial in January, but lost that case as well as later motions to change the protocol due to Arthur suffering cardiovascular disease. Writing in July, U.S. Magistrate Judge Keith Watkins wrote that Arthur had not had a health evaluation since 2009 and had not made “good faith” efforts to square his medical condition with the way the state proposes to execute him.
“Intense prodding by the court saw Arthur essentially standing mute as to the existence of a specific remedy, i.e., a proposed alternative method of execution, for an alleged unconstitutional risk,” he wrote.
Arthur’s attorneys say that due to their client’s health issues, the use of midazolam could give him a heart attack before staff administers the fatal drugs. They also argue that the trial court shouldn’t have prevented him from arguing for execution by firing squad, citing Utah’s use of the procedure in 2010.
“Over the past century, a firing squad execution has never resulted in a botched execution (i.e., resulting in an agonizing death for the inmate), in contrast to more than 7 percent of lethal injection executions,” the briefing said.
The state argued that execution by firing squad wasn’t a method available in the state.
Arthur also argues the use of pentobarbital, or modifications to the midazolam protocol, may do a better job rendering him unconscious. Arthur originally challenged pentobarbital’s use — the state had run out of the sedative by 2014, which led to the switch to midazolam — but his attorneys wrote that was about the use of pentobarbital in the old protocol, and that the “gradual administration” of the drug wouldn’t reflect Arthur’s initial complaint. The appeal also suggests the lower court applied the Eighth Amendment — not the 14th — in dismissing Arthur’s concerns over the consciousness test.
The inmate’s attorneys argue the court accepted “perfunctory” arguments from DOC personnel that they could not obtain pentobarbital, and prevented his defense from discovery that might have added more information about DOC’s efforts in that regard.
“Mr. Arthur is thus ... required on the one hand to prove the availability of an alternative execution method to ADOC, but prevented, on the other, from developing the factual record to meet that burden,” they wrote.
Robert Dunham, executive director of the Death Penalty Information Center, an anti-death penalty group, said the U.S. Supreme Court likely didn’t think about what available methods of execution meant when handing down Glossip.
“The question is if a state has chosen a mechanism like lethal injection, but administers that in a questionable way, is that considered a sufficiently flexible method of execution that you don’t need to consider other things like firing squad?” he said. “We don’t know the answer to that right now.
The state executed Christopher Brooks in January for the 1992 rape, murder and robbery of Jo Deann Campbell. Witnesses said Brooks showed no visible signs of distress during his execution. The state planned to execute Vernon Madison in May for the 1985 murder of Mobile police officer Julius Schulte, but the 11th Circuit Court of Appeals stayed the execution due to questions about the effect a series of strokes had on Madison’s state of mind.
Source: Montgomery Advertiser, Brian Lyman, September 27, 2016
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