With Eleventh Circuit Okay, Alabama Executes Third Prisoner by Nitrogen Hypoxia
Getting a green light from the United States Court of Appeals in the Eleventh Circuit, Alabama used nitrogen gas to kill prisoner Carey Dale Grayson, 50, on November 21, 2024. He told William C. Holman Correctional Facility Warden Terry Raybon to “fuck off” before the gas started flowing, using the middle fingers of both strapped-down hands to continue protesting during a 10-minute-long ordeal until he appeared to stop breathing.
In its ruling, the Court discounted eyewitness testimony that prisoners suffered such lengthy painful deaths during the state’s previous nitrogen hypoxia executions. But as PLN reported, Kenneth Eugene Smith writhed in agony for 10 minutes as he suffocated in January 2024. [See: PLN Mar. 2024, p.24.] During the second killing on September 26, 2024, Alan Eugene Miller, 59, stopped shaking and trembling two minutes after the gas started flowing—though he continued to gulp for breath another six minutes, witnesses said. State Department of Corrections Commissioner John Q. Hamm insisted after the executions that witnesses saw only “involuntary body movements.”
But Grayson challenged the state’s plan to kill him the same way. The federal court for the Middle District of Alabama refused to issue an injunction, finding “that the evidence did not establish a substantial risk that the nitrogen hypoxia protocol would cause severe pain and suffocation,” as the Eleventh Circuit recalled. In its ruling on November 18, 2024, the appellate Court agreed with Defendant state officials that the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions,” quoting Baze v. Rees, 553 U.S. 35 (2008)—a decision in which the U.S. Supreme Court also refused to “transform courts into boards of inquiry charged with determining ‘best practices’ for executions.”
Yet the Eleventh Circuit then took time to dismiss Grayson’s claims that the gas mask wouldn’t fit, also dismissing as “speculative” his expert’s opinion that a pre-execution examination of the prisoner’s airway was needed. The Court allowed that the district court erred in determining that “conscious suffocation” would not necessarily violate the Eighth Amendment. But it called that error harmless because it refused to find that Grayson faced such a risk. Despite reports of Smith and Miller’s suffering, the Court agreed that those “inferences taken from hearsay eyewitness accounts” were “of highly questionable value.”
The Court also declared its credulous belief that Defendants “do not intend ‘to add pain, let alone super-added pain, in developing and implementing the nitrogen hypoxia protocol’”—as if the state’s indifference to suffering weren’t the point. Accordingly, the district court order was affirmed. Grayson was represented before the Court by Federal Defender Program of Montgomery attorneys Eric C. Brown, Spencer J. Hahn, Kacey L. Keeton, John A. Palombi and Matt D. Schulz. See: Grayson v. Comm’r, 2024 U.S. App. LEXIS 29278 (11th Cir.).
Grayson and three fellow teens were convicted of kidnapping, murdering and mutilating the body of hitchhiker Vickie Deblieux, 37, in 1994. His fellow murderers, Kenneth Loggins, Trace Royal Duncan and Louis Christopher Mangione, were all under 18 at the time, so they were sentenced to life in prison. After Grayson’s execution, Deblieux’s surviving daughter, Jodi Haley, said that “[m]urdering inmates under the guise of justice needs to stop.”
Additional source: BBC News, Montgomery Advertiser
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