Alabama Supreme Court authorizes third nitrogen gas execution

MONTGOMERY, Ala. -- A third person is set to be executed by nitrogen gas, Alabama authorized Wednesday, months after becoming the first state to put a person to death with the previously untested method.

The Alabama Supreme Court granted the state attorney general’s request to authorize the execution of Carey Dale Grayson, one of four teenagers convicted in the 1994 killing of Vickie Deblieux in Jefferson County. Alabama Gov. Kay Ivey will set Grayson’s execution date.

In January, the state put Kenneth Smith to death in the nation’s first nitrogen gas execution. A second execution using the protocol is set for Sept. 26 for Alan Eugene Miller. Miller recently reached a lawsuit settlement with the state over the execution method.

Alabama and attorneys for people in prison continue to present opposing views of what happened during the first execution using nitrogen gas. Smith shook for several minutes on the death chamber gurney as he was put to death Jan. 25. While Alabama Attorney General Steve Marshall described the execution as “textbook,” lawyers for inmates said it was the antithesis of the state’s prediction that nitrogen would provide a quick and humane death.

Grayson has an ongoing lawsuit seeking to block the state from using the same protocol that was used to execute Smith. His attorneys argued the method causes unconstitutional levels of pain and that Smith showed signs of “conscious suffocation.”

“We are disappointed that the Alabama Supreme Court has authorized the setting of an execution date before the federal courts have had a chance to review Mr. Grayson’s challenge to the constitutionality of Alabama’s current nitrogen protocol, and before Mr. Grayson has had an opportunity to review any changes to the protocol brought about by the recent Alan Miller settlement,” Matt Schulz, an assistant federal defender who is representing Grayson, wrote in an email.

Earlier this month, Miller reached a “confidential settlement agreement” with the state to end his lawsuit over the specifics of the state’s nitrogen gas protocol. A spokesperson for the Alabama Department of Corrections declined to comment on whether the state is making procedural changes for Miller.

The state has asked a judge to dismiss Grayson’s lawsuit, arguing that the execution method is constitutional and that his claims are speculative.

Marshall’s office did not immediately comment on the court setting the execution date.

Grayson was charged with torturing and killing Deblieux, 37, on Feb. 21, 1994. Prosecutors said Deblieux was hitchhiking from Tennessee to her mother’s home in Louisiana when four teenagers, including Grayson, offered her a ride. Prosecutors said they took her to a wooded area, attacked and beat her and threw her off a cliff. The teens later mutilated her body, prosecutors said.

Grayson, Kenny Loggins and Trace Duncan were all convicted and sentenced to death. However, Loggins and Duncan, who were under 18 at the time of the crime, had their death sentences set aside after the U.S. Supreme Court in 2005 banned the execution of offenders who were younger than 18 at the time of the crime. Grayson was 19.

The fourth teenager was sentenced to life imprisonment.

Schulz noted that Alabama, in a 2004 Supreme Court brief opposing an age cutoff for the death penalty, wrote that it would be nonsensical to allow Grayson to be executed but not the codefendants whom the state described as “plainly are every bit as culpable — if not more so — in Vickie’s death and mutilation.” The state was seeking to allow all the teens to be executed.

Lethal injection remains Alabama’s primary execution method but gives inmates the option to choose the electric chair or nitrogen gas. Grayson had previously selected nitrogen gas as his preferred execution method, but that was before the state had developed a process to use it.