A federal judge should order Alabama to execute a death row inmate with an untried one-dose lethal injection method, attorneys for the inmate said today.
But first, the judge should rule that the state's current three-drug method is invalid and can't be used in future executions, according to a court document filed by attorneys for death row inmate Ronald Bert Smith. The Alabama Department of Corrections also hasn't yet submitted an acceptable method for administering the one-drug method, the attorneys say.
Smith is set to be executed Dec. 8.
U.S. District Court Judge Keith Watkins, in an order issued last week gave Smith's attorneys until today to submit in writing why he should not order Alabama to execute Smith using "a large initial dose of midazolam, followed by continuous infusion" of that drug.
The Alabama Attorney General's Office has until Friday to respond to Smith's attorneys response.
Smith is among a group of Alabama death row inmates challenging Alabama's three-drug lethal injection protocol for executions. Alabama, along with other states, have developed different drug combinations after drug manufacturers started refusing to supply execution drugs the states had been using.
When death row inmates file lawsuits challenging a state's method of execution as cruel and unusual punishment, they must offer suggestions to the court of alternate methods of execution that are safe and not painful. Among the suggestions by Alabama inmates have been firing squad and hanging – both options Watkins dismissed because they are not set out in Alabama law.
Inmates also have suggested using a large, single dose, of midazolam as an alternative method.
"This court can and should order the defendants to use Mr. Smith's identified single-drug midazolam alternative," according to Smith's attorneys. "Before it can do so, this Court must enjoin the defendants (ADOC) from using the present protocol, and this court must be satisfied that defendants have adopted an adequate protocol, including accounting for all necessary equipment and sufficient training to execute Mr. Smith using his proposed single-drug midazolam alternative."
The attorneys, however, disagree with the way the state suggested it would administer the midazolam.
What Smith had suggested, based on testimony from a doctor, was injection of a large bolus of midazolam followed by a continuous infusion of midazolam. But what Alabama Department of Corrections suggested in court document is injecting Smith with 500 mg of midazolam, followed by repeated 500 mg injections, if necessary.
According to a doctor's report, if midazolam was to be used as the sole agent for lethal injection, a loading dose between 2,500 to 3,750 mg could be used followed by a continuous IV infusion until death, Smith's lawyers state in their response. "This would be preferable to repeated boluses of midazolam until death, as the bolus method would result in spikes and dips in concentration while the continuous infusion method would provide a continuous increase in the drug until death," according to the court document.
One of Smith's concerns regards what a witness claims she saw in the Jan. 21 execution of Christopher Brooks, the first – and so far only - execution conducted Alabama's three-drug lethal injection method.
|Ronald Bert Smith|
After his execution, a witness in the viewing room testified one of Brooks' eyes opened after the consciousness assessment and remained open until the curtain was closed in the viewing room, according to the judge's order.
"The eye episode has become a central component of the Eighth Amendment (cruel and unusual punishment) claim in the current complaint of Mr. Smith, in the motion to dismiss, and in the response to it—particularly in Mr. Smith's objection to midazolam as a sedative in the three-drug protocol," the judge stated in his order last week. "Mr. Smith argues that midazolam will inadequately anesthetize him, thereby causing severe pain upon the infusion of the second and third drugs in the protocol, rocuronium bromide and potassium chloride, respectively."
"It is undisputed that potassium chloride causes severe pain to a conscious person," Watkins states.
Watkins writes that he ultimately dismissed the notion of a one-drug protocol in Brooks' case as "fraught with peril" arising out of a number of unanswered concerns.
But it's time to reconsider it the one-dose option, according to Watkins. "Changes in the posture of the case dictate that the court explore the midazolam option pled and urged by Mr. Smith and presently offered by defendants (Alabama Attorney General's Office)," Watkins stated in his order.
Smith, who has been on death row since Oct. 6, 1995, was convicted in Madison County in the November 1994 slaying of Circle C convenience store clerk Casey Wilson during a robbery. A judge overrode a jury's 7-5 recommendation for life without parole and imposed the death penalty.
Smith's attorneys on Monday also filed an appeal to the Alabama Supreme Court asking that the state's death penalty law be declared unconstitutional in light of the U.S. Supreme Court's ruling that struck down Florida's law in January in the case Hurst v. Florida.
"Ronald Smith was never sentenced to death by a jury," the appeal to the Alabama Supreme Court states. "A judge made factual findings contrary to the jury's findings and sentenced him to death. The United States Supreme Court has made it plain that such a system and such a sentence violates the Constitution. The question before this Court is: How can Mr. Smith's sentence stand? The answer: It cannot. Mr. Smith's death sentence must be vacated, and the jury's verdict of life without parole must be reinstated."
The Alabama Supreme Court, in a recent ruling, however, rejected another appeal that also argued that Alabama's law allowing judicial override was unconstitutional in light of the Hurst v. Florida ruling. The Alabama Supreme Court ruled that Alabama's law is constitutional.
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