The Death Penalty in the OSCE Area–Background Paper 2019 “torturous pain”, demonstrate the country’s failure to be a “civilized nation” and its acceptance of “barbarism.”100 This man was one of 33 death row inmates who unsuccessfully challenged Tennessee’s three-drug lethal injection protocol in February 2018, seeking to replace it by execution with a single barbiturate, pentobarbital.101 They argued that the pain caused by using midazolam would violate the United States Constitution but they allegedly failed to show that a more humane alternative was readily available.102 It is considered likely that the above mentioned execution and the resulting discussions over the use of the three-drug cocktail led two other Tennessee death row inmates to “choose” electrocution.103 On 2 November 2018, four death row inmates filed a lawsuit in a federal district court in Nashville in which they asked to be executed by firing squad,104 due to their argument that both the lethal injection and electrocution protocols in Tennessee violate the Eighth Amendment. This lawsuit was unsuccessful, as the Sixth Circuit Court of Appeals ruled that the firing squad represents, “an outmoded method of execution.”105 Lawsuits related to the three-drug lethal injection as a method of execution were not limited to Tennessee. In July 2018, eight death row prisoners in Alabama chose to be executed by nitrogen asphyxiation (hypoxia)106 after a new law was enacted authorizing the use of nitrogen gas without oxygen in March 2018.107 The amount of pain this may induce 100  Justice Sotomayor dissenting, Billy Ray Irick v. Tennessee on application for stay, 9 August 2018, p. 6, <https://www.supremecourt.gov/opinions/17pdf/18a142t_5h26.pdf>. 101  “Tennessee Supreme Court denies stay of execution for death row inmate”, Tennessee State Courts website, 6 August 2018, <https://www.tncourts.gov/news/2018/08/06/tennessee-supreme-court-denies-stay-execution-death-row-inmate>. 102  Ibid., and: “Tennessee execution: Billy Ray Irick tortured to death, expert says in new filing”, Tennessean website, 13 September 2018, <https://eu.tennessean.com/story/news/crime/2018/09/07/tennessee-execution-billy-ray-irick-tortured-filing/1210957002/>. 103  Tabak, op. cit., note 63, p. 238. Both Miller and Zagorski expressed their dilemma of having to choose between two unconstitutional and cruel methods of execution. See: “Tennessee Executes Mentally Ill and Sexually Abused Prisoner by Electrocution”, Death Penalty Information Center, 7 December 2018, <https://deathpenaltyinfo.org/news/tennessee-executes-mentally-ill-and-sexually-abused-prisoner-by-electrocution>; “Governor Rejects Jurors’ Plea for Clemency for Edmund Zagorski as Tennessee Court Allows Lethal Injections to Proceed”, Death Penalty Information Center, 9 October 2018, <https://deathpenaltyinfo.org/news/governor-rejects-jurorsplea-for-clemency-for-edmund-zagorski-as-tennessee-court-allows-lethal-injections-to-proceed>. 104  “Four Tennessee death row inmates ask for execution by firing squad”, The Guardian, 5 November 2018, <https://www.theguardian.com/us-news/2018/nov/05/tennessee-death-row-inmates-execution-firing-squad>. 105  “Tennessee executes another inmate by electric chair after supreme court battle”, The Guardian, 7 December 2018, <https://www.theguardian.com/us-news/2018/dec/06/tennessee-execution-electric-chair-david-earl-miller>. 106  “Alabama Prisoners End Execution Lawsuit, State Will Drop Lethal Injection in Favor of Nitrogen Gas”, Death Penalty Information Center, 12 July 2018, <https://deathpenaltyinfo.org/news/alabama-prisoners-end-execution-lawsuit-state-will-drop-lethal-injection-in-favor-of-nitrogen-gas>. 107  Death Penalty Information Center, “The Death Penalty in 2018: Year End Report”, op. cit., note 76, p. 17. 27