MONTGOMERY, Ala. (AP) — A 74-year-old Alabama inmate scheduled to be executed in November is asking an appellate court to review his claim that Alabama's lethal injection procedure is inhumane.
Lawyers for Thomas Arthur filed the appeal with the 11th U.S. Circuit Court of Appeals. Arthur's attorneys argued a federal judge in July prematurely dismissed Arthur's challenge after misapplying a requirement for inmates to name an alternate execution method.
"Absent this court's intervention, Mr. Arthur will soon be executed without having been afforded the chance to prove that Alabama's method of execution is highly likely to subject him to agonizing pain," lawyers for Arthur wrote.
Arthur is scheduled to be put to death Nov. 3 for the 1982 murder-for-hire of Muscle Shoals businessman Troy Wicker.
The appeal, filed Saturday, centers around the application of a requirement that inmates challenging execution procedures must name an alternate execution method that is available. Arthur suggested a firing squad and another lethal injection drug. The judge said Arthur had not identified a source for alternate drugs. He also rejected a firing squad because it wasn't explicitly named as a form of execution in Alabama law.
Lawyers for Arthur said the judge was putting such a strict interpretation on the requirement that it would be impossible for an inmate to fulfill and challenge a state's execution method.
"There can be no dispute that condemned prisoners lack the authority to negotiate a supply of drugs on behalf of the state, and a condemned inmate cannot reasonably do more than identify a feasible alternative," lawyers for Arthur wrote.
Arthur is challenging the state's use of the sedative midazolam hydrochloride as the first drug in the three-drug protocol. Arthur argued it is unreliable as a sedative and that he would feel the effects of the two drugs administered after it.
The U.S. Supreme Court has upheld the use of midazolam, but Arthur's lawyers argued Alabama's protocol is different and that Arthur also has unique health issues that make it problematic. They said Arthur has cardiovascular issues, that combined with his age, would likely cause him to suffer a heart attack as the drug is administered.
Arthur had been scheduled for execution on six previous occasions, but was given court-issued reprieves. The Alabama attorney general's office asked for an expedited execution date after the judge dismissed Arthur's latest lawsuit in July.
Alabama is seeking to resume executions after a more-than-two-year lull as the state faced a scarcity of lethal injection drugs and ongoing litigation over the death penalty.
The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013, and the state's first execution using midazolam.