By Ivana Hrynkiw
al.com
MONTGOMERY, Ala. Four years ago, Alabama’s Death Row inmates got a choice of how they wanted the state to kill them. Most didn’t understand that their choice could mean a shot at living longer. Some didn’t even know the option existed.
The new option is death by nitrogen hypoxia, where a prisoner inhales nitrogen without any source of oxygen and dies of asphyxiation. Some argue it’s more humane than Alabama’s lethal injection system, but no state has tested it yet.
How the state handled the rollout of letting the men and women awaiting execution know about ending their lives via nitrogen hypoxia, and that they only had a month to make that choice, has been the subject of many lawsuits, including one from a man set to die by lethal injection on Sept. 22. Attorneys for that man argue that Alabama simply lost his signed form.
Of the 177 inmates on Alabama’s Death Row in June 2018, about 48 signed a form opting to die via the new method. But lawsuits say the state didn’t create a formal process as to how inmates were supposed to make their choice, nor a clear system of tracking those choices. Those lawsuits also say inmates didn’t know the state had no protocol for the nitrogen hypoxia executions and wouldn’t be able to implement them for years.
How the Alabama Attorney General’s Office defended the prison system’s handling of the process is set to go before the United States Eleventh Circuit Court of Appeals in October.
Gov. Kay Ivey signed a bill giving death row inmates the option to choose execution by nitrogen hypoxia over the default lethal injection method in 2018. According to the law, inmates waiting to be executed were allowed to opt for the new method within a 30-day period in June 2018.
It was a selection system that United States Supreme Court Justice Sonia Sotomayor called “haphazard” as she wrote: “Once a State has determined that individuals on death row should have a choice as to how the State will execute them, it should ensure that a meaningful choice is provided.”
What happened when inmates were allowed to change their execution method?
When then-Senate Bill 272 became law in 2018, it added the use of nitrogen hypoxia as an approved method of execution.
Nitrogen does not cause the death of an inmate; the hypoxia, or lack of oxygen, does. According to federal court records involving a previously executed inmate, inhalation of only one or two breaths of pure nitrogen will cause sudden loss of consciousness and, if no oxygen is provided, death.
There have been no executions using the method in the United States, and Alabama has not yet finalized its plans on how to carry out the executions.
Under the Alabama law, people sentenced to death could elect to be executed by nitrogen hypoxia; if they didn’t make that election, lethal injection was the default method. For those already on death row, the law said inmates must make their election to die by nitrogen hypoxia within 30 days of June 1, 2018.
There was no state-approved process of making that change for those already sitting on Alabama’s Death Row—just that the election must be made personally, in writing, and delivered to the warden with 30 days, according to the law.
On June 22, 2018, the Federal Defenders for the Middle District of Alabama drafted a form for their clients, over 40 of who sat on death row. The form, according to a filing in the 11th Circuit Court of Appeals, had lines for the inmate’s name, inmate number, and signature.
The Federal Defenders spoke with each of their clients and gave them copies of the form. According to court records, 48 death row inmates opted in to die by nitrogen hypoxia; about 75 percent were represented in some fashion by the Federal Defenders.
The form did not indicate that it had been drafted by the Federal Defenders for their clients. It also did not notify inmates of the opt-in period or the consequences of not signing the form during that period.
Attorneys for the Federal Defenders said in court filings they did not intend for the form to be distributed widely because, without context and conversations with their lawyers, inmates may not be able to understand what the form entailed.
Since the state had not yet developed a protocol for executions by nitrogen hypoxia, they could not yet set execution dates for those inmates.
Because some prisoners didn’t have the full context of what they were or were not signing, some later claimed that they were being targeted for speedier executions. A 2020 court filing in one case said the inmates were told their options were lethal injunction or nitrogen hypoxia, but they weren’t told they were also choosing the timing of their executions.
At some point in late June 2018, according to court records, then-warden Cynthia Stewart obtained the Federal Defenders form, made copies, and told a correctional captain to distribute it to inmates on death row. According to a deposition, Stewart said someone “above (her) in management” directed her to have the form widely distributed.
It has never been revealed in public court records who told Stewart to distribute the Federal Defender’s form.
The Alabama Department of Corrections had previously decided not to distribute “a notice form concerning the hypoxia election period” to death row inmates or instructions on how to opt-in, according to a federal judge’s order.
An affidavit from Federal Defenders attorney John Palombi showed that his office did not authorize anyone to copy or recreate the form, and he was never notified that the warden had distributed it widely. He and his colleagues didn’t learn about the distribution of their form until February 2019.
Why does the process matter?
Several inmates who were not represented by the Federal Defenders at the time have filed lawsuits with various claims surrounding the process of electing nitrogen hypoxia as their method of execution.
At least four inmates who have since been executed filed lawsuits before their deaths surrounding the ADOC’s handling of the process. Joe Nathan James Jr. made a similar complaint in a lawsuit before his July 28 execution. Inmates Alan Eugene Miller and Jarrod Taylor argue they did sign the form and opt for nitrogen hypoxia, but that the state did not have a proper method for logging the signatures or storing the papers and ultimately lost their paperwork.
In October 2021, during a court battle surrounding Willie Smith’s execution, Sotomayor released a statement saying she shared the same concerns as a lower court judge who “identified serious concerns” with the opt-in process.
Sotomayor wrote that Alabama had a “compressed timeline for notifying eligible inmates” about the nitrogen hypoxia choice and had a “haphazard approach to doing so.”
Sotomayor added that while the state’s process of having inmates select an alternate execution method wasn’t before the court, the way “in which the ADOC chose to notify individuals on death row of this development was at odds with the gravity of that task and the humanity of those affected.”
Miller, who is set to be executed by lethal injection on Sept. 22, argued in a federal lawsuit that he signed and completed the form and turned it in to the prison official who was collecting the papers. Miller alleges in an affidavit that he asked for a copy of his signed form and that it be notarized, but was denied both requests.
“Forms were distributed and collected from inmates, but (the state) entirely failed to implement any written process for providing notice, distributing, collecting, or storing election forms, and as a result, ADOC has lost election forms submitted by Mr. Miller and other people on death row at Holman,” his attorneys wrote in their lawsuit.
They argue that Stewart instructed an employee not to log the names of individuals who returned an election form, and that ADOC did not create a list or otherwise log the names of people who turned in the election forms.
The ADOC “lost Mr. Miller’s election form because they failed to create, no less implement, adequate procedures for distributing, collecting, and storing such forms. Now, some inmates who elected to be executed by nitrogen hypoxia will have their elections honored by (the state), while other inmates—who also elected to be executed by nitrogen hypoxia—will not.”
The AG’s Office argued in Smith’s case that—because the ADOC had decided not to distribute a notice about the new law and they were surprised to learn Stewart had—Stewart must have made the choice to hand out the forms on her own; but, later testimony from Stewart showed she had been directed by someone with a higher rank.
U.S. Chief District Judge Emily Marks formally reprimanded Assistant Alabama Attorney General Lauren Simpson and AG Steve Marshall’s Office in Sept. 2021 order. The judge also imposed a personal sanction on Simpson for $1,500.
The AG’s Office is appealing that order to the 11th Circuit and is set to argue their case before a three-judge panel for the court in October.
The process of choosing to die by nitrogen hypoxia is opposite than the rollout of lethal injection in 2002. Then, an inmate was to be executed via lethal injection unless they opted in to stay with the method of electrocution within 30 days.
The AG’s Office declined to comment for this story.