Alabama death row inmate challenges nitrogen gas executions in federal lawsuit

A death row inmate in Alabama filed a lawsuit in federal court challenging the constitutionality of nitrogen gas executions. He argued that the first person in the nation put to death by this method experienced violent convulsions for several minutes in “a human experiment that officials botched miserably.”

Bernard E. Harcourt, counsel for death row inmate David Phillip Wilson, asserted in the Thursday lawsuit that the results of Kenneth Eugene Smith’s January execution demonstrate that “nitrogen gas asphyxiation is neither quick nor painless, but agonizing and painful.” Wilson, convicted of killing a man during a 2004 burglary, is the plaintiff in this lawsuit.

Wilson’s lawsuit further asserts that he possesses “unique medical conditions” that increase the probability of him enduring an extended death, thereby violating the Eighth Amendment’s prohibition of cruel and unusual punishment. The document proceeds to specify these conditions as “pulmonary issues,” “Asperger’s Syndrome,” and “light hyper-sensitivity and vision impairment.”

The lawsuit seeks to obtain a declaratory judgment stating that the existing protocol for nitrogen gas asphyxiation violates a person’s constitutional right to be safeguarded against cruel and unusual punishment.

The US Supreme Court allowed Alabama to execute a person with nitrogen gas for the first time last month. Wilson’s lawsuit contends:

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.

It then lists reports from both media and witnesses of Smith’s execution that oppose the state’s claim to the courts that execution by nitrogen gas would swiftly render someone unconscious “within seconds.” The lawsuit argues that Alabama already had a “bad track record of botched executions” even before using nitrogen gas.

Alabama Attorney General Steve Marshall has asserted that Smith’s execution last month was a “proven method,” and expressed the state’s intention to carry out more death sentences using nitrogen gas.