Last week, a federal court stayed the scheduled execution of 56-year-old Jeffery Borden in order to address questions about the constitutionality of Alabama's method of execution.
Mr. Borden challenged Alabama's method of execution last year, arguing that the three-drug protocol puts him at risk of a torturous execution in violation of the Eighth Amendment because there is a substantial risk that the first drug, the sedative midazolam, will not anesthetize him and instead he "will be paralyzed, suffocating, and unable to alert anyone" before the third drug, potassium chloride, is administered, causing extreme agony.
The federal trial court granted the stay on October 5, mere hours before the scheduled execution, in order to provide an adequate opportunity to fairly consider evidence in support of Mr. Borden's constitutional challenge.
In a similar case, the State of Alabama has scheduled an execution for Torey McNabb for October 19.
But an earlier order from the Eleventh Circuit Court of Appeals required that there be no executions in Alabama before October 19, which could block Mr. McNabb's execution as well. Last week, Alabama prosecutors asked the United States Supreme Court to vacate the Eleventh Circuit's stay order, which it did over the dissents of three Justices.
Observers are hopeful that another execution will be avoided so that inmates challenging Alabama's method of execution can have a fair opportunity to prove that the current method is unconstitutional.
Questions about lethal injection persist around the country as states respond to drug shortages by engaging in illegal drug imports and sales, buying drugs from largely unregulated compounding pharmacies, conducting experiments on prisoners by injecting them with never-before-tried quantities and combinations of drugs, and using drugs like midazolam, which has been involved in several botched executions.