The nation's third execution with nitrogen gas is set to take place in Alabama on Thursday.
Carey Grayson, 50, is scheduled to be executed at 6 p.m. Central time. He was condemned to death for the 1994 killing of 37-year-old Vickie Deblieux.
He was one of four teenagers convicted of capital murder. Deblieux was hitchhiking from Tennessee to her mother's home in Louisiana when the teenagers offered her a ride. Prosecutors said they picked her up and took her to a wooded area, attacked her, threw her off a cliff and later mutilated her body.
Grayson is the only one facing a death sentence because two others had their death sentences commuted when the U.S. Supreme Court barred the execution of offenders who were younger than 18 at the time of their crimes. Grayson was 19. Another teenager involved in the killing was sentenced to life in prison.
Attorneys for Grayson are seeking to halt his execution, arguing that the nitrogen hypoxia method causes unconstitutional levels of pain.
The execution method involves placing a respirator gas mask over an inmate's face to replace breathable air with pure nitrogen gas, causing death by oxygen deprivation. Alabama first used the method to put Kenneth Smith to death in January. In September, the state used nitrogen gas to execute Alan Miller.
Experts who testified for the state had predicted that nitrogen gas would render a person unconscious between 10 and 40 seconds. But media witnesses, including reporters from the Associated Press, said Smith and Miller shook on the gurney for two minutes or longer.
An appeal before the U.S. Supreme Court is pending.
"Two prisoners—Kenneth Eugene Smith and Alan Eugene Miller—have been executed by nitrogen hypoxia, and their executions did not match what Respondents promised (including to this Court)," Grayson's attorneys wrote in a petition to Justice Clarence Thomas on Tuesday.
"Executing Mr. Grayson in the same way as Messrs. Smith and Miller will result in an Eighth Amendment violation if Mr. Grayson's interpretation of the Eighth Amendment and Baze is correct," they wrote, referring to the Supreme Court's 2008 decision that Kentucky's lethal injection scheme did not violate the Eighth Amendment.
They added: "Given this is the first new execution method used in the United States since lethal injection was first used in 1982, it is appropriate for this Court to reach the issues surrounding this novel method. Without a stay and grant of certiorari, this Court will continue to face the questions raised in the petition about this novel method, and Mr. Grayson will be subject to an execution with superadded terror and pain in 49 hours."
Newsweek reached out by email to attorneys for Grayson and the Alabama Department of Corrections for comment.
The last-minute filing comes after the 11th U.S. Circuit Court of Appeals affirmed a lower court's ruling on Monday, allowing Grayson's execution to go forward with the same nitrogen gas protocol that Alabama has used to put Smith and Miller to death.
The decision came after judges heard oral arguments in which Grayson's lawyers and the Alabama attorney general's office gave opposing accounts of the first two nitrogen gas executions carried out by the state.
John Palombi, Grayson's attorney, told judges that the subject will feel "conscious suffocation" before the nitrogen renders the person unconscious. But a lawyer for the state argued that nitrogen hypoxia quickly causes unconsciousness and no physical pain.
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