MONTGOMERY, Alabama — A third person will be executed by nitrogen gas, Alabama gave its approval Wednesday, months after become the first state to put someone to death by a method as yet untried.
The Alabama Supreme Court has granted the state’s attorney general’s request to authorize the execution of Carey Dale Grayson, one of four teenagers convicted of murdering Vickie Deblieux in Jefferson County in 1994. 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 scheduled for Sept. 26 for Alan Eugene MillerMiller recently reached a settlement with the state in a lawsuit over the execution method.
Alabama and attorneys for people in prison continue to present opposing views on what happened during the first execution using nitrogen gas. Smith shook for a few minutes on an execution chamber gurney as he was put to death on Jan. 25. While Alabama Attorney General Steve Marshall described the execution as “a textbook example,” advocates for prisoners said it was the antithesis of the state’s prediction that nitrogen would ensure a quick and humane death.
Grayson has a pending lawsuit seeking to block the state from using the same protocol used to execute Smith. His attorneys have argued that the method causes unconstitutional levels of pain and that Smith showed signs of “conscious asphyxiation.”
“We are disappointed that the Alabama Supreme Court authorized the setting of an execution date before the federal courts have had an opportunity 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 settlement with Alan Miller,” Matt Schulz, an assistant federal defender representing Grayson, wrote in an email.
Earlier this month, Miller reached a “confidential settlement agreement” with the state to end his lawsuit about the details of the state’s nitrogen gas protocol. A spokesman 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 the execution method is unconstitutional and the claims are speculative.
Marshall’s office has not yet commented on the court’s determination of 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 teenagers 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 overturned after the U.S. Supreme Court in 2005 banned the execution of offenders who were under 18 at the time of the crime. Grayson was 19.
The fourth teenager was sentenced to life in prison.
Schulz noted that in a 2004 Supreme Court brief opposing an age limit on the death penalty, Alabama wrote that it would make no sense to execute Grayson but not the co-defendants whom the state described as “clearly equally guilty — or even more guilty — of Vickie’s death and mutilation.” The state wanted to allow all the teenagers to be executed.
Lethal injection remains Alabama’s primary method of execution, but it gives inmates the option of 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 for using it.