The Alabama Supreme Court has set execution dates in early 2015 for two death-row inmates, as the state prepares to end a long death penalty hiatus caused by a shortage of execution drugs.
Thomas Arthur is set to be executed by lethal injection Feb. 19 for a murder in Muscle Shoals in the 1980s. William Kuenzel, convicted in the killing of a convenience store clerk in Sylacauga, is scheduled for execution March 19. Both execution dates were set by the state’s highest court in orders issued Dec. 23.
Kuenzel and Arthur would be the first Alabama inmates executed using a new three-drug protocol that starts with midazolam, and anesthetic intended to prevent inmates from feeling pain during executions. The new lethal injection formula also includes the muscle relaxer rocuronium bromide and, finally, a shot of potassium chloride to induce cardiac arrest.
State officials settled on midazolam in September, after years of struggling with shortages of execution drugs. Past executions used drugs such as pentobarbital, but major manufacturers, many of them based in Europe, have backed out of supplying those drugs for use in executions. The death penalty is banned throughout much of Europe.
Alabama hasn’t executed an inmate since July 2013. State officials in March acknowledged that they’d run out of the drugs the state was using in executions at the time.
Attempts to reach attorneys for both Kuenzel and Arthur were unsuccessful Monday, as were attempts to reach Clay Crenshaw, who oversees capital cases for the Alabama Attorney General’s office.
Over recent weeks, however, those lawyers have hashed out each man’s case in court. In an October court filing, Kuenzel’s lawyers questioned the reliability of witnesses who located Kuenzel at the scene of the crime – and called the state’s motion for an execution date “wildly premature” due to an appeal Kuenzel still has pending.
Arthur’s lawyers, meanwhile, have argued that the new three-drug protocol violates the constitutional prohibition on cruel and unusual punishment. Midazolam was the first drug used in the April execution of Oklahoma inmate Clayton Lockett, who remained alive for 43 minutes after he was injected. Condemned Ohio inmate Dennis McGuire gasped for breath in a 25-minute execution using midazolam in May, according to accounts in the press.
In a court motion filed in October, Arthur’s lawyers claim the new drug is likely to cause “severe pain and suffering” during Arthur’s execution. They also claim that secrecy surrounding details of the execution protocol makes it difficult for a court to review.
“Even if the court were to uphold the constitutionality of the current version of the protocol based on a review of the merits, there is simply no way of ensuring that this same protocol will be the one actually used to carry out an execution,” Arthur’s lawyers state in the motion. Several portions of that motion were redacted before federal courts made the document available to the public.
The attorney general’s office argues that the midazolam protocol is “virtually identical” to one that has held up to court scrutiny in Florida.
“Numerous courts have examined Florida’s protocol and held it to be constitutional,” Crenshaw stated in a court motion in September.
With the change to midazolam in September, the attorney general’s office sought execution dates for nine inmates on death row. So far, according to officials in the attorney general’s office, only Kuenzel and Arthur have dates set. But at least two others have challenged the new drug protocol in federal court, using arguments similar to those made in Arthur’s case.
Among those inmates is former Anniston resident Anthony Boyd, one of four men convicted in the 1993 killing of Gregory Huguley. According to Anniston Star accounts of his 1995 trial, Boyd and others, seeking revenge for an alleged drug debt, taped Huguley to a bench in a Munford park, doused him with gasoline, and set him on fire.
Boyd’s attorney, Matthew Moschella, maintains Boyd is not guilty of the crime. But even a guilty defendant would deserve protection from cruel and unusual punishment, he said.
“I think the fundamental principle that our legal system rests on is that everyone is equal to the same constitutional protection,” he said. “Once that barrier is erased for one person, no matter how despicable their crime, there it goes for all of us.”
In a response to Boyd’s motion, prosecutors said Boyd filed his claim too late — because the switch to midazolam was not significant enough to reset the two-year statute of limitations for filing such a claim. The state switched from electrocution to lethal injection in 2002, and prosecutors claim Boyd’s statute of limitations ran out in 2004.
There are currently 193 inmates still on Alabama’s death row.