dissenting:
I dissent. Williams filed his execution-method challenge promptly — within 25 days of the conclusion of his federal habeas review and just 16 days after the State’s motion to set an execution date. The majority states that it should have been apparent to Williams that he had a constitutional claim at the time the legislature changed the law in favor of execution by lethal injection. However, his claim did not become ripe until it was clear that he had exhausted the claims pertaining to his conviction and sentence. I cannot subscribe to the majority’s view that Williams should have anticipated the denial of all relief and filed this case prior to the determination of his pending case.
Thus, I believe the district court’s opinion should be reversed and remanded for an evidentiary hearing on the merits of Williams’ claims. This is especially so given the serious nature of his merits claim that Alabama’s execution procedure is unconstitutional. Alabama’s method of execution calls for the injection of three drugs which in sequence are intended first to anesthetize, then paralyze, and then kill the defendant. Williams asserts that the evidence he has marshaled will show that the first drug in Alabama’s three-drug lethal injection protocol will be insufficient to induce surgical anesthesia for the duration of the execution, leaving him conscious throughout this ordeal and subjecting him to excruciating, searing pain.1 Moreover, because the second drug in the cocktail will have rendered him unable to move, he will not be able to signal his pain.
A civilized and just society would surely want to assure itself that it does not administer executions in a manner that is needlessly painful and unconstitutionally torturous, especially when the solution — to provide sufficient anesthetic to safeguard against painful death — would appear so simple and easy to accommodate.
Therefore, I dissent.
. Recent developments in medical research have raised questions about the degree of pain and suffering caused by the method of lethal injection that some states, including Alabama, use. See, e.g., Leonidas G. Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365 The Lancet 1412 (Apr. 16, 2005) (finding current lethal injection protocols may not reliably effect death through the mechanisms intended, indicating a failure of design and implementation).