“The State of Alabama has a bad track record of botched executions,” a federal lawsuit challenging the state’s new method of execution by nitrogen gas begins. It was filed by a lawyer for David Wilson, who has been on Alabama’s death row since 2008.
“In the modern death penalty era, since the resumption of executions after Gregg v. Georgia (1976), there have been five failed executions in which the person survived and walked out of the execution chamber. Three out of the five, or 60 percent of the failed executions were carried out by the State of Alabama. Since 2018, there have been ten botched executions in the United States. Five of, or fifty percent, were carried out by the State of Alabama,” the complaint continues.
But despite its history and the fact Alabama, “by any metric. . . is the least competent state at carrying out executions in this country,” it “engaged in human experimentation” last month when it executed Kenneth Smith “by means of a nitrogen gas-mask asphyxiation method that had never been used before in human history,” the lawsuit states.
Wilson’s lawyer, Bernard Harcourt, is all too familiar with Alabama’s history of botched executions. The state’s attempt to kill his client, Doyle Lee Hamm, in 2018 was called off after a two-and-a-half-hour ordeal that was so botched it “almost certainly punctured Doyle’s bladder because he was urinating blood for the next day. They may have hit his femoral artery as well because suddenly, there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen,” Harcourt wrote in a blog post at the time.
One month after the botched attempt, the state entered into a confidential settlement with Hamm, “preventing any further execution attempts.” The state was forced to make public its lethal injection protocol and release its records relating to Hamm’s execution. (Hamm died in December 2021 of cancer.)
It botched Kenneth Smith’s too, according to Harcourt, despite state Attorney General Steve Marshall boasting that Smith’s execution by gas was quick and “textbook,” and proved that “nitrogen hypoxia as a means of execution is no longer an untested method. It is a proven one.” But the five reporters chosen by the Corrections Department to witness the execution told a very different story, Harcourt notes. They “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 states.
Harcourt also maintains that “It should not come as a surprise that no state in this country permitting medical aid- in-dying authorizes doctors to use asphyxiation to help their patients die. Instead, all states that have legalized medical-aid-in-dying only permit doctors to prescribe lethal drugs to patients who qualify for the procedure.” And, “even veterinarians do not allow nitrogen asphyxiation for mammals. . . . The American Veterinary Medical Association has published guidelines on the euthanasia of animals… and specifically recommends against the use of nitrogen gas.”
All of the problems with using nitrogen gas are made even worse when the man the state wants to kill has the severe medical issues the 40-year-old David Wilson has. “He suffers from pulmonary health problems of long date, including tuberculosis and other respiratory difficulties. These are chronic and permanent conditions that constrict the airways in his lungs, making it difficult for him to breathe,” according to the lawsuit. “If Mr. Wilson experiences a pulmonary attack at the time of his execution, his involuntary coughing might cause the nitrogen gas-mask to become dislodged— thereby introducing atmospheric oxygen into the system and the possibility of brain damage,” Harcourt states.
He also has Asperger’s Syndrome (which means he has “hyper-sensitivity to physical touch or constrictions,” and “atypically high sensitivity to light”) as well as “vision problems that mandate eyewear,” according to the lawsuit.
“As evidenced by Mr. Kenneth Smith’s torturous, 22-minute execution,” the execution of David Wilson using its nitrogen gas asphyxiation protocol… will cause David Wilson cruel and unusual suffering, in violation of the Eighth and Fourteenth Amendments,” the lawsuit states.
Wilson doesn’t have an execution date. He was sentenced to death in 2008, in a 10-2 jury vote, for the 2004 murder of Dewey Walker during a burglary. There are still issues concerning evidence that was withheld by the prosecution during his capital trial. An accomplice in the burglary, who pleaded guilty to hitting Walker with a bat and was sentenced to 25 years, confessed to killing Walker in a letter to another imprisoned person. That letter was not turned over to the defense until last April,15 years after Wilson was sent to death row, al.com reported.
