Alabama death row inmate sues to block future nitrogen executions

A sign for Holman Correctional Facility in Atmore, Ala., is shown on Jan. 25. A death row inmate is suing to stop the state's new method of executions, calling it inhumane. (AP Photo/Kim Chandler)
A sign for Holman Correctional Facility in Atmore, Ala., is shown on Jan. 25. A death row inmate is suing to stop the state's new method of executions, calling it inhumane. (AP Photo/Kim Chandler)

An Alabama death row inmate has sued to stop Alabama's use of nitrogen gas executions, calling it cruel and unusual punishment.

In a lawsuit filed Thursday in the U.S. District Court for the Middle District of Alabama, David Wilson, sentenced to death for the 2004 murder of Dewey Walker during a robbery, argues that nitrogen gas asphyxiation is inherently inhumane and would be particularly painful for Wilson due to pre-existing health conditions, including chronic lung problems and sensory sensitivities.

The legal action follows questions about the execution of Kenneth Eugene Smith by nitrogen in January and criticisms of Alabama's execution procedures more generally.

The lawsuit includes accounts from five reporters present during the execution, including Alabama Reflector reporter Ralph Chapoco, and one reporter who accompanied Smith's family, who said that Smith experienced prolonged suffering on the gurney.

"This is an open and shut case. The media witnesses were there to be the public eye and to tell us what happened. They described minutes of writhing in agony and pain, and that is simply unconstitutional," Bernard Harcourt, executive director of Columbia Law School's Initiative for a Just Society and counsel for Wilson, said in a phone interview on Friday.

Messages seeking comment were left with the offices of the Alabama Attorney General and Department of Corrections on Friday.

(READ MORE: As Alabama eyes more nitrogen executions, opponents urge companies to cut off plentiful gas supply)

The lawsuit states that the Attorney General's Office told federal courts that death would occur "within minutes," but "in stark contrast to the attorney general's representations, the five media witnesses chosen by the Alabama Department of Corrections and present at Mr. Smith's execution recounted a prolonged period of consciousness marked by shaking, struggling and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing."

The lawsuit argues that "it is morally repugnant" the Eighth Amendment has been interpreted to mean people who are going to be executed have the responsibility of proving there are more humane methods. To require that a plaintiff develop their own execution protocol forces a person to participate in their own execution, the filing stated.

To force him to choose how he would prefer to die would be equal to "forcing someone to dig their own grave," the filing stated, adding that it is considered torture under international law. But to have the case heard in court, he had to suggest an alternative method of execution — a federal requirement. The lawsuit suggests a method of medical aid-in-dying used in the United States, such as a drug cocktail known as "DDMP II," which includes substances such as morphine and diazepam.

(READ MORE: Alabama Department of Corrections' internal execution review draws criticism)

It would also be a form of torture because Wilson has "unique medical conditions" that may cause Wilson to experience severe pain and suffering if executed by nitrogen asphyxiation, the lawsuit said, such as pulmonary heart problems and Asperger's Syndrome.

It states that Alabama has a "bad track record of botched executions," with the state performing 60% of all failed executions and that since 2018, there have been 10 failed executions, half of which happened in Alabama. The lawsuit alleges that Alabama accounts for about 12% of all executions but more than half of failed executions in the country.

Alabama officials conducted three consecutive botched executions in 2022. A private autopsy conducted on Joe Nathan James Jr., executed in July of that year, found cuts and abrasions on his arms. The lethal injections of Alan Miller and Smith later in 2022 were called off after personnel were unable to establish a vein.

"By any metric, the State of Alabama is the least competent state at carrying out executions in this country," the lawsuit states.

(READ MORE: Alabama man shook violently on gurney during first-ever nitrogen gas execution)

Wilson was convicted of Walker's death in 2004. Walker, 64, was found dead in his home after failing to show up for work. Wilson admitted to being there to steal a computer and confessed to hitting Walker with a bat when he discovered him, then attempting to disarm him with an extension cord. Three others received prison sentences of 23 to 25 years for their roles. Wilson was sentenced to death based on a 10-2 jury vote.

Alabama is the only state that has conducted an execution under the method. Mississippi and Oklahoma have both authorized the method. Kansas Attorney General Kris Kobach has come out in support of using the method of execution in Kansas, which has not conducted an execution since the 1960s.


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