An Alabama inmate convicted in a 1994 murder died Thursday in the state's third nitrogen hypoxia execution this year.
The emerging execution method, which involves breathing solely nitrogen gas through a mask while being deprived of oxygen, continues to draw concerns over the possibility of prolonged suffering and whether there is an unconstitutional risk of added pain.
But a federal appeals court this week rejected arguments made by the condemned man's lawyers, allowing the execution of Carey Dale Grayson, 50, to proceed.
Grayson was executed at the state prison in Atmore at 6:33 p.m., according to the governor's office, for the abduction and killing of a hitchhiker, Vickie Deblieux, when he was 19 and his three co-defendants were younger than 18.
His co-defendants' death sentences were eventually amended to life sentences after the U.S. Supreme Court ruled that executing juveniles is unconstitutional.
In his final statement, Grayson spoke about how he committed a horrible crime and how sorry he was — and how he has been sorry for 30 years. He said he has repented and he hopes everyone can forgive him, his lawyer, Kacey Keeton, said.
Grayson also spoke about his disappointment in the prison system and accused prison authorities of committing murder, calling them serial killers, according to Keeton.
Witnesses were unable to hear Grayson's last words as jail officials cut the microphone after he said an expletive to the warden.
Protesters had sent petitions asking Alabama Gov. Kay Ivey to halt Grayson's execution. Her office did not respond to a request for comment, but she was not expected to intercede, telling the Montgomery Advertiser this month when she was asked about the state's carrying out an execution a week before Thanksgiving: "Did Carey Grayson give any consideration to the fact that he robbed Vickie Deblieux and her family of now 30 Thanksgivings?"
A statement from the governor's office released following the execution said Ivey "told Corrections Commissioner John Hamm that she would not exercise her clemency powers in this case and directed him to proceed with Mr. Grayson’s lawfully imposed death sentence."
"Even after her death, Mr. Grayson’s crimes against Ms. DeBlieux were heinous, unimaginable, without an ounce of regard for human life and just unexplainably mean," Ivey said in the statement. "An execution by nitrogen hypoxia bares no comparison to the death and dismemberment Ms. DeBlieux experienced."
Alabama Attorney General Steve Marshall said in a statement "justice has been served" Thursday, adding "My prayer for Vickie’s family is that they can find solace in the State of Alabama finally serving justice for their heartbreaking loss."
Grayson's lawyers appealed to the U.S. Supreme Court on Tuesday, writing that his case "raises issues of national importance" among death penalty states about "whether the Eighth Amendment prohibits suffocating a conscious prisoner and whether a state's refusal to prevent conscious suffocation via a novel method of execution superadds terror and pain in violation of the Eighth Amendment."
The high court has typically declined to intervene in last-minute requests to halt executions. It refused to do so when Alabama executed Kenneth Smith, the first person in the U.S. to die in a nitrogen gas execution, in January and again in September, when the state executed Alan Miller in a second nitrogen gas execution.
Eyewitness reports of both executions mentioned that the men appeared to struggle while they were strapped to gurneys and being fed nitrogen. Smith, 58, did not become unconscious as quickly as expected, and he appeared to shake and writhe for two minutes, while Miller, 59, pulled against his restraints and periodically gasped for about six minutes, according to reports.
In both cases, Alabama initially tried to execute the men by lethal injection, but the attempts were abandoned when prison staff members could not successfully establish intravenous lines.
The series of problematic executions using lethal injection led Alabama officials to pause the practice in 2022 and re-evaluate before they restarted it last year. Since then, Alabama has become the first state to develop a nitrogen hypoxia execution protocol in addition to lethal injection.
Lethal injection remains the default method in the state, although condemned inmates can choose nitrogen hypoxia or, in some cases, electrocution.
Grayson had chosen nitrogen hypoxia before a protocol for it was in place.
“The State of Alabama’s nitrogen protocol has been used twice and has not worked as they swore it would. Instead of taking the sensible approach and fixing the problem, they are pushing forward using the same method on Thursday," Grayson’s lawyer John Palombi said.
"Mr. Grayson’s execution should be stopped and a full, independent, and transparent examination of the protocol conducted,” he added.
The use of nitrogen has raised concerns among human rights groups as states have looked for viable alternatives to lethal injection, a method that has become increasingly difficult because of a shortage of the necessary drugs.
If nitrogen, a naturally occurring, colorless and odorless gas, is not mixed with enough oxygen, it can cause physical side effects, such as impaired respiration, vomiting and even death, medical experts say.
During an execution, a small amount of oxygen's getting into an inmate's mask as the inmate breathes nitrogen could lead to slow asphyxiation and prolong the time it would take to die, according to the experts.
In his arguments in front of the appeals court panel this week, Palombi mentioned concerns about how long Smith and Miller were conscious as their bodies reacted to the procedure.
"I would submit to the court that being conscious and being suffocated for a period of time constitutes terror that is superadded to this protocol that does not have to be there, as acknowledged by the fact that the state is willing to, if he requests it, give Mr. Grayson a sedative," said Palombi, who is with the Federal Defenders Program.
Robert Overing, Alabama's deputy solicitor general, disagreed with Palombi's assessment and countered that nitrogen hypoxia is not akin to suffocation "like drowning or smothering with a plastic bag or paralyzing the lungs."
"This is really apples and oranges trying to use the term 'suffocation' to evoke a sense of fear and pain that doesn't exist with this method," Overing told the court.
Grayson was become the sixth person executed in Alabama this year.
In February 1994, prosecutors say, he and three teenage friends — Kenny Loggins, Trace Duncan and Louis Mangione — were using alcohol and drugs when they encountered Deblieux, 37, who was hitchhiking through Alabama to see her mother in Louisiana.
They beat Deblieux, threw her off a cliff and mutilated her body, including cutting off her fingers, according to court records. They were linked to the crime after Mangione showed Deblieux's finger to friends, prosecutors say.
Grayson, who was 19 at the time of killing, was sentenced to death, while Mangione, then 16, was given a life sentence. Death sentences for Loggins and Duncan, then both 17, were later commuted to life in prison.
