COLUMBIA, Mo., Aug. 2 (UPI) -- The lawyers for Ernest Lee Johnson, a convicted murderer sentenced to death in Missouri, have suggested execution via nitrogen gas -- arguing lethal injection on their client would be an unconstitutional cruel and unusual punishment.
Brian Gaddy and Jeremy Weis, Johnson's lawyers who are based in Kansas City, filed a court document on Monday that said administering the pentobarbital drug used in Missouri's lethal injection protocol would cause Johnson "violent and uncontrollable seizures" amounting to a breach of the Constitution. They argued he would have a different reaction to the drug than other death row inmates because had brain surgery to remove a tumor in 2008, which left scar tissue.
Johnson was sentenced to death for killing three people in 1994 at a convenience store. He was scheduled to be executed by lethal injection in November but the Supreme Court issued a last-minute stay of execution until a lower court ruled on his unique situation.
"The use of the lethal injection drugs used by the Department of Corrections under its current protocol create a substantial and unjustifiable risk that Mr. Johnson will suffer a severely painful execution by the triggering of violent and uncontrollable seizures and convulsions, which constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution," the court document states.
Johnson's lawyers instead suggested the use of "nitrogen-induced hypoxia" -- the only other legal form of capital punishment in Missouri but one that has not been used since 1965. Missouri does not have an operable gas chamber.
Oklahoma approved the gas-based execution in 2015. A state-commissioned review board said it found the method to be a more humane method of execution, describing the person would become unconscious within 20 seconds which could cause a "quick and painless death of the offender."
"The available literature regarding the nitrogen gas method of execution strongly suggests that the subject will have no allergic reaction to the gas, will experience a loss of consciousness, and will suffer no pain," Johnson's lawyers wrote.
The Missouri Attorney General's Office has argued Johnson's lawyers have not proven death by gas would generate a less painful death, also adding doubt that the use of pentobarbital would cause a violent, painful death.
Over the attorney general's doubt of successfully using gas without a gas chamber, Johnson's lawyers said the execution can be carried out with the use of a "hood, a mask or some other type of medically enclosed device to be placed over the mouth or head of the inmate."
