The Alabama attorney general’s office on Friday asked the Alabama Supreme Court to set execution dates for nine death row inmates despite a pending challenge to Alabama’s lethal injection protocol.
The Alabama Department of Corrections changed its lethal injection protocol on September 10 to include midazolam hydrochloride, the same drug that was used in the botched execution of Clayton Lockett in Oklahoma earlier this year.
The move marks the second time in recent years that the State of Alabama has abruptly changed its protocol. In 2011, Alabama executed Jason Williams using a new drug protocol that officials hastily substituted and refused to disclose after their supply of lethal drugs was confiscated by the federal Drug Enforcement Agency. It used the new protocol to execute Eddie Powell; witnesses reported that officials proceeded even though Mr. Powell’s eyes remained open, his head turned from side to side, and he clenched his jaws.
Death row inmate Tommy Arthur then filed a federal lawsuit challenging Alabama’s lethal injection procedure, and the Eleventh Circuit Court of Appeals ruled in 2012 that the State could not execute Mr. Arthur without proving its protocol is constitutional.
“There has been no finding about the manner in which Alabama administers its lethal injections, no evaluation of whether Alabama’s representations are accurate, and no opportunity whatsoever to contradict the State’s assertions with Arthur’s own evidence,” the federal appeals court wrote. “And the lack of factual development in this record is only exacerbated by Alabama’s policy of maintaining secrecy surrounding every aspect of its three-drug execution method.” The court presciently observed that Alabama’s “protocol is not certain and could be unexpectedly changed for [Mr. Arthur’s] execution.”
Mr. Arthur’s lawsuit is still pending. The State has been unable to show that its method of execution is constitutional and its announcement that it has again changed the drugs it will use in executions is its latest attempt to execute inmates without federal court review of its lethal injection protocol.
In light of what the Eleventh Circuit called the “veil of secrecy that surrounds Alabama’s execution protocol,” this latest announcement raises even more concerns about the lethal injection procedure, including the State’s choice to use a drug used by other states where botched executions resulted and its ongoing refusal to disclose the source and purity of lethal drugs.
The State is seeking execution dates for Tommy Arthur, Demetrius Frazier, Gregory Hunt, William Ernest Kuenzel, Robin Dion Myers, Christopher Lee Price, David Lee Roberts, Anthony Boyd, and Christopher Eugene Brooks.