A federal appeals court gave new life to a lawsuit filed by Alabama death row inmates against the state government's lethal injection protocol.
The 11th Circuit Court of Appeals on Friday vacated a lower court's ruling against the inmates, noting the district court did not consider the inmates' full assertions.
In vacating and remanding the case for additional review, the southeastern federal appeal court's three-judge panel said, "the District Court must first determine what risk the current three-drug protocol — with midazolam as the first drug — presents before considering the adequacy of Appellants' proposed alternatives."
Midazolam is a sedative, which was used in the controversial execution of Ronald Bert Smith Jr. — who was convicted of killing a convenience store clerk — in December 2016 that "resulted in nearly fifteen minutes of Smith heaving and gasping for breath," according to the Death Penalty Information Center.
Smith's execution sparked controversy because a jury voted 7-5 to recommend life without parole, but a judge overrode the veto and ordered a death sentence.
The 11th Circuit denied Smith's appeals of the judge's ruling, so the appeal proceeded to the then-eight-member Supreme Court. The Supreme Court issued multiple stays temporarily halting the execution en route to a 4-4 vote that allowed Smith's execution to proceed as ordered by the judge.
Alabama's legislature then passed a new law in April providing juries with the last say over whether to use the death penalty in capital murder cases. Alabama was the last state to allow judges to override juries in delivering death penalties instead of life sentences.
Supreme Court Justice Stephen Breyer subsequently issued several calls for the high court to reconsider the constitutionality of the death penalty. Whether the latest controversy in the Heart of Dixie arrives at the Supreme Court remains to be seen.