MONTGOMERY, Alabama — A third person is to be executed with nitrogen gas, Alabama authorized Wednesday, months after becoming the first state to put a person to death using the previously untested method.
The Alabama Supreme Court has granted the state attorney general’s request to allow the execution of Carey Dale Grayson, one of four teenagers convicted of the 1994 murder of Vickie Deblieux in Jefferson County. Alabama Gov. Kay Ivey will set the date for Grayson’s execution.
In January, the state executed Kenneth Smith in the nation’s first nitrogen gas execution. A second execution under that protocol is scheduled for Sept. 26 for Alan Eugene Miller. Miller recently reached an agreement with the state over the method of execution.
Alabama and the inmates’ attorneys continue to present opposing views about what happened in the first nitrogen execution. Smith trembled for several minutes on the death chamber gurney as he was put to death on Jan. 25. While Alabama Attorney General Steve Marshall called the execution “a textbook case,” the inmates’ attorneys said it ran counter to the state’s prediction that nitrogen would ensure a quick and humane death.
Grayson filed a lawsuit to prevent the state from using the same protocol that was used to execute Smith. His lawyers argued that the method caused unconstitutional levels of pain and that Smith showed signs of “conscious suffocation.”
“We are disappointed that the Alabama Supreme Court allowed an execution date to proceed before the federal courts had a chance to consider Mr. Grayson’s challenge to the constitutionality of Alabama’s current nitrogen protocol, and before Mr. Grayson had a chance to review the changes to the protocol made by the recent Alan Miller settlement,” Matt Schulz, an assistant federal public defender representing Grayson, wrote in an email.
Earlier this month, Miller entered into a “confidential settlement agreement” with the state to end his lawsuit over the details of the state’s nitrogen gas protocol. A spokesperson for the Alabama Department of Corrections declined to say whether the state is making any procedural changes to Miller.
The state asked a judge to dismiss Grayson’s complaint, arguing that the method of execution is constitutional and that his allegations are speculative.
Marshall’s office did not immediately comment on the court’s decision to set the execution date.
Grayson was accused of 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. They took her to a wooded area, assaulted and beat her and threw her off a cliff, prosecutors said. The teens then 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 banned the execution of offenders who were under 18 at the time of the crime in 2005. Grayson was 19.
The fourth teenager was sentenced to life imprisonment.
Schulz noted that Alabama, in a 2004 brief to the Supreme Court opposing an age limit on the death penalty, wrote that it would be absurd to allow Grayson to be executed but not the co-defendants whom the state described as “manifestly equally culpable — if not more so — for Vickie’s death and mutilation.” The state sought to allow all of the teenagers to be executed.
Lethal injection remains the primary method of execution in Alabama, but inmates have the option of choosing between the electric chair and nitrogen. Grayson had previously chosen nitrogen as his preferred method of execution, but that was before the state had developed a process for using it.
