Condemned Alabama Prisoner Challenges Execution by Nitrogen Hypoxia
by David M. Reutter
Citing Alabama’s “bad track record of botched executions,” death row prisoner David P. Wilson, 41, filed a civil rights action on February 15, 2024, alleging that the state’s intended use of nitrogen hypoxia to execute him constitutes cruel and unusual punishment.
Struggling to obtain necessary drugs to carry out lethal injections, the state Department of Corrections (DOC) has turned to nitrogen hypoxia, which involves strapping the condemned prisoner to a gurney and placing a mask over his face to administer nitrogen gas until he is robbed of oxygen and suffocates.
According to the Death Penalty Information Center, 10 of 121 execution attempts in the U.S. since 2018 were botched. As PLN reported, three of those attempts were made on Alabama prisoners, who survived the death chamber to await another execution date: Doyle Lee Hamm in 2018, followed by Alan Eugene Miller and Kenneth Eugene Smith in 2022. [See: PLN, Dec. 2018, p.36; and June 2023, p.18.] Alabama, Wilson’s complaint noted, was “responsible for about twelve percent of all executions,” but “it accounts for more than half of failed and botched executions in the United States.”
Hamm later died of cancer, and the state is scheduled to kill Miller by nitrogen hypoxia in September 2024. Smith was killed on January 25, 2024, after losing a legal challenge to the method, during which state Attorney General Steve Marshall (R) assured the federal court for the Middle District of Alabama on December 29, 2023, that DOC had developed a “nitrogen hypoxia protocol” which would “rapidly reduce oxygen inside the mask, cause unconsciousness within seconds, and cause death within minutes.” See: Smith v. Hamm, USDC (M.D. Ala.), Case No. 2:23-cv-00656.
However, media witnesses in the death chamber “recounted a prolonged period of consciousness marked by shaking, struggling, and writhing by Mr. Smith for several minutes after the nitrogen gas started flowing,” Wilson’s complaint recalled. It also noted that the gas mixture used “is specifically not acceptable for the euthanasia for ‘any’ mammal,” according to the American Veterinary Medical Association. The violent convulsions that Smith suffered, the complaint declared, were the results of “a human experiment that officials botched miserably.”
Wilson, who faces death for killing Dewey Walker, 64, during a 2004 burglary at the victim’s Dothan home, also asserted that “unique medical conditions”—including “pulmonary problems” and “Asperger’s Syndrome,” as well as “light sensitivity and vision problems”—increase the probability of his enduring a prolonged death. He is represented by attorney and Columbia University Law School Prof. Bernard E. Harcourt. PLN will report developments in the case as they are available. See: Wilson v. Hamm, USDC (M.D. Ala.), Case No. 2:24-cv-00111.
Meanwhile Wilson is also pursuing a challenge to his sentence based on a letter prosecutors withheld from his defense counsel that was allegedly written by accomplice Kitty Corley, in which she confessed to beating Walker with a baseball bat until he fell. The same Court agreed on March 27, 2023, that the state must turn over the letter to Wilson in his habeas corpus petition. See: Wilson v. Hamm, 2023 U.S. Dist. LEXIS 51395 (M.D. Ala.). Harcourt is also representing Wilson in that petition, and PLN will report developments as they are available. See: Wilson v. Hamm, USDC (M.D. Ala.), Case No. 1:19-cv-00284.
Wilson’s accomplices—Corley, Michael Ray Jackson and Matthew Marsh, all 41—are serving prison sentences for convictions stemming from Walker’s robbery and murder. All three are next up for parole in January 2025.
Additional sources: Jurist, WTVY
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