- Associated Press - Friday, June 2, 2017

MONTGOMERY, Ala. (AP) - The 11th U.S. Circuit Court of Appeals on Friday halted an Alabama execution scheduled for next week to decide on death row inmates’ argument that Alabama plans to use a sedative which will not render them unconscious before other drugs stop their lungs and heart.

A three-judge panel granted the emergency stay requested by Robert Bryant Melson. Melson was scheduled to be executed June 8 for killing three Gadsden restaurant employees during a 1994 robbery.

Melson is one of several inmates who filed lawsuits, which were consolidated, arguing that the state’s execution method is unconstitutional. A federal judge in March dismissed the lawsuits, and the inmates appealed to the 11th Circuit saying the judge prematurely dismissed their claims.

A three-judge panel of 11th Circuit judges did not indicate whether they thought the inmates would succeed in their appeals. To the contrary, the judges wrote Friday that they were staying Melson’s execution to avoid the “untenable” prejudging of the inmates’ cases.

The inmates claim Alabama’s use of the sedative midazolam at the start of the execution will not render them unconscious before other drugs stop their lungs and heart and that Alabama does not effectively check for consciousness.

Melson’s lawyers wrote in a Friday motion that the state “botched” a December execution in which inmate Ronald Bert Smith coughed and moved for 13 minutes.

Midazolam is supposed to prevent an inmate from feeling pain, but several executions in which inmates lurched or convulsed have raised questions about its use. An Arkansas inmate in April lurched about 20 times during a lethal injection.

“Mr. Smith’s botched execution supports the argument that midazolam is a vastly different drug than pentobarbital. It does not anesthetize the condemned inmate, and because it does not anesthetize, defendants’ use of potassium chloride is unconstitutional,” Melson’s attorneys wrote.

The attorney general’s office had asked the appellate court to let the execution proceed, arguing that courts have approved the drug’s use. A spokesman for the Alabama attorney general’s office could not immediately be reached for comment.

The stay came even though the appellate courts just last week allowed another execution using midazolam to proceed in Alabama.

Alabama last week executed inmate Tommy Arthur for the murder-for-hire slaying of riverboat engineer Troy Wicker. Arthur did not cough or lurch like Smith.

Alabama has carried out a total of three executions using midazolam.

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