First Alabama execution in two years: Does state have the correct drugs?

Christopher Brooks, an Alabama inmate on death row for a 1992 murder, is set to be executed on Thursday night.

But his attorneys are anxiously pushing for a stay, arguing that the state should more closely review its procedures for executing inmates before Mr. Brooks is set to die by lethal injection at 6 p.m.

Alabama, which last executed an inmate in 2013, revamped the drugs it uses in lethal injections a year later. That decision included switching to the controversial sedative midazolam, which inmates’ lawyers and death penalty opponents have argued is ineffective, prolonging executions and causing excruciating pain.

Lawyers for the state have argued that Alabama’s new drug combination is “virtually identical” to one that has been used in Florida without incidents.

But Brooks’ lawyers say the use of midazolam — which was found to be at the root of other problematic executions, including that of Oklahoma inmate Clayton Lockett, who died 43 minutes after being sedated in April 2014 – is effectively experimental and could lead to cruel and unusual punishment.

"Brooks should not be the subject of Alabama's experiment to see if it can carry out an execution using this protocol while the very validity of the protocol is at issue in ongoing federal court proceedings," Assistant Federal Defender John Palombi wrote in a filing to the  Alabama Supreme Court.

The drug was at the center of a Supreme Court case last year brought by inmates in Oklahoma, who argued that the executions using the drug could constitute cruel and unusual punishment – a violation of the Eighth Amendment to the US Constitution. But in a split decision, the high court allowed Oklahoma to continue use the drug, which is also the subject of an ongoing lawsuit by six Alabama inmates.

They argue that midazolam isn’t an effective anesthetic, meaning convicts will feel the effect of subsequent injections of rocuronium bromide and potassium chloride, which are used to stop an inmates’ heart and lungs.

Use of the death penalty is declining across the country, with 28 executions conducted in 2015 in only six states, according to end of year predictions by the Death Penalty Information Center. That’s the lowest number of executions since 1991, while the number of death sentences imposed by states and the federal government is also declining.

Some judges have argued for alternatives to lethal injection instead, with one California judge calling for the reinstatement of firing squads.

“If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all,” Ninth Circuit Court of Appeals Judge Alex Kozinski said in July 2014, The Christian Science Monitor reported.

Judge Kozinski, who oversaw the capital case of Arizona inmate Joseph Wood, who also faced a prolonged execution by lethal injection, said in his ruling that using drugs to execute inmates was “a misguided effort to mask the brutality of executions by making them look serene and peaceful.”

But in the case of Brooks, Alabama prosecutors point to the brutality of the murder of 23-year-old Jo Deann Campbell, who was found dead in her apartment after being raped and bludgeoned to death with a barbell. Brooks was linked to the murder by DNA evidence — then in its infancy — as well as fingerprints in Ms. Campbell’s apartment. Court documents say he was later found with her car keys and gas credit card.

He and Campbell first met a year earlier when they worked as camp counselors at separate camps in the Adirondacks in upstate New York. But her family said she had been surprised when Brooks showed up at the restaurant where she worked in December 1992, later telling a friend that she intended to let Brooks and one of his friends stay at her apartment.

During his 1993 trial, defense lawyers contended that another man staying at her apartment on the night of Dec. 30 could have committed the murder, but a judge sentenced him to die after a jury voted 11-1 to impose a death sentence.

Prosecutors rejected his lawyers’ attempts to ask Alabama’s Supreme Court for a stay. “Brooks raped and murdered Jo Deann Campbell on December 31, 1992 and her family has been waiting for justice for more than twenty-three years,” lawyers for the state wrote.

Alabama last executed an inmate named Andrew Reid Lackey in July 2013 for a 2005 murder that began with an attempted robbery. Prior to his execution, the state last put an inmate to death in October 2011.