Alabama Federal Court Issues Injunction Halting Execution of Alan Miller

A fed­er­al dis­trict court issued an order on September 19, 2022 to halt the sched­uled September 22, 2022 exe­cu­tion of Alabama death-row pris­on­er Alan Miller ​“by any method oth­er than nitro­gen hypox­ia,” lead­ing to a series of last-minute appeals by Alabama pros­e­cu­tors and an after-hours exe­cu­tion-night rul­ing by the U.S. Supreme Court to let the exe­cu­tion go for­ward. Alabama sub­se­quent­ly called off the exe­cu­tion when it became appar­ent more than two hours lat­er that exe­cu­tion per­son­nel would be unable to suc­cess­ful­ly set an IV line before the mid­night expi­ra­tion of Miller’s death warrant.

In a 61-page rul­ing Judge R. Austin Huffaker, Jr. of the U.S. District Court for the Middle District of Alabama (pic­tured), grant­ed Miller’s request for a pre­lim­i­nary injunc­tion bar­ring the state from exe­cut­ing him ​“by any method oth­er than nitro­gen hypox­ia.” Because the Alabama Department of Corrections (ADOC) told the court on September 15 that it is not pre­pared to car­ry out an exe­cu­tion by nitro­gen hypox­ia, the order effec­tive­ly amount­ed to a stay of Miller’s execution. 

The Alabama Attorney General’s office appealed Judge Huffaker’s order to the U.S. Court of Appeals for the Eleventh Circuit on September 20, which ruled against state pros­e­cu­tors. A 5 – 4 major­i­ty of the U.S. Supreme Court sub­se­quent­ly vacat­ed the injunction.

When Alabama autho­rized nitro­gen hypox­ia as a method of exe­cu­tion, it gave pris­on­ers a 30-day win­dow in which to des­ig­nate it, rather than lethal injec­tion, as their method of exe­cu­tion. Miller says he did so, and even request­ed a copy of the form, but the state says it has no record of him sub­mit­ting the form. State pros­e­cu­tors then began seek­ing death war­rants against pris­on­ers who had not des­ig­nat­ed nitro­gen hypox­ia, sched­ul­ing them to be exe­cut­ed by lethal injec­tion. It did not seek war­rants against any­one who des­ig­nat­ed nitro­gen hypox­ia and with­drew a request for an exe­cu­tion date for death-row pris­on­er Jarrod Taylor after he pro­duced evi­dence that ADOC has lost his designation form. 

“Miller has pre­sent­ed con­sis­tent, cred­i­ble, and uncon­tro­vert­ed direct evi­dence that he sub­mit­ted an elec­tion form in the man­ner he says was announced to him by the [ADOC],” Judge Huffaker wrote, along with ​“cir­cum­stan­tial evi­dence” that ADOC lost or mis­placed his form.

Miller was not seek­ing to declare Alabama’s method of exe­cu­tion uncon­sti­tu­tion­al. Rather, he iasked the court to pro­hib­it Alabama from exe­cut­ing him in vio­la­tion of its own law by deny­ing his statu­to­ry right to des­ig­nate a method of exe­cu­tion autho­rized by the state. ​“Miller will like­ly suf­fer irrepara­ble injury if an injunc­tion does not issue because he will be deprived of the abil­i­ty to die by the method he chose and instead will be forced to die by a method he sought to avoid and which he asserts will be painful,” Judge Huffaker wrote. The injury will be, ​“the loss of his ​‘final dig­ni­ty’ — to choose how he will die.”

ADOC and state pros­e­cu­tors have appealed the injunc­tion to the U.S. Court of Appeals for the Eleventh Circuit, which ordered Miller’s lawyers to file his response by 9:00 a.m. September 22, the morn­ing of the sched­uled exe­cu­tion. Prosecutors then had until 1:00 p.m. on the 22^nd to file their reply. The cir­cuit court reached its deci­sion uphold­ing the injunc­tion mid-after­noon of the 22^nd. When pros­e­cu­tors sought review in the U.S. Supreme Court, it vir­tu­al­ly assured that the sched­uled exe­cu­tion would be delayed. 

Alabama’s exe­cu­tion per­son­nel had already botched two recent exe­cu­tions, fail­ing to set an exe­cu­tion line for more than two hours in each case. On February 22, 2018, the exe­cu­tion team unsuc­cess­ful­ly attempt­ed more than 10 times to insert intra­venous exe­cu­tion nee­dles into Doyle Lee Hamm​’s feet, legs, and right groin, caus­ing bleed­ing in his groin, and like­ly punc­tur­ing his blad­der, caus­ing blood in his urine. As the mid­night dead­line to put Hamm to death approached, ADOC Commissioner Jeffrey Dunn called off the exe­cu­tion and held a news con­fer­ence in which he said, ​“I wouldn’t char­ac­ter­ize what we had tonight as a prob­lem.” Dunn repeat­ed­ly assert­ed that the state had fol­lowed its execution protocol.

One month lat­er, in response to a motion filed in a civ­il rights law­suit by Doyle Hamm’s lawyer, the Alabama Attorney General blamed the U.S. Supreme Court for the state’s fail­ure to exe­cute Hamm. Prosecutors wrote: ​“because the Supreme Court pre­vent­ed Defendants [ADOC] from begin­ning prepa­ra­tions until a mere three hours before the exe­cu­tion war­rant was set to expire, time ran out for Defendants and neces­si­tat­ed abort­ing the execution.” 

On July 28, 2022, in the longest record­ed botched lethal injec­tion in U.S. his­to­ry, ADOC per­son­nel took an esti­mat­ed three hours to exe­cute Joe Nathan James, Jr. ADOC has refused to pro­vide details of what occurred dur­ing the three hours before media were per­mit­ted into the wit­ness room and the cur­tains in the exe­cu­tion cham­ber were opened, but assert­ed that ​“ADOC’s exe­cu­tion team strict­ly fol­lowed the estab­lished pro­to­col.” ADOC issued a state­ment say­ing ​“The pro­to­col states that if the veins are such that intra­venous access can­not be pro­vid­ed, the team will per­form a cen­tral line pro­ce­dure. Fortunately, this was not nec­es­sary and with ade­quate time, intra­venous access was established.”

A pri­vate­ly fund­ed autop­sy sub­se­quent­ly revealed that the exe­cu­tion team had failed mul­ti­ple times to set an intra­venous exe­cu­tion line. James suf­fered sev­en punc­ture wounds and unex­plained inci­sions in the vicin­i­ty of his veins that appeared to be relat­ed to efforts to set the exe­cu­tion line. He also had punc­ture wounds in his arm mus­cles that appeared to be unre­lat­ed to insert the IV, which the doc­tors at the autop­sy believed were attempts to sedate James. James also expe­ri­enced bleed­ing and bruis­ing around his wrists where he was strapped to the gur­ney. Dr. Zivot, who par­tic­i­pat­ed in the autop­sy, said it also revealed ​“evi­dence of pul­monary ede­ma flu­id [flu­id in the lungs] indi­cat­ing that [James] had expe­ri­enced the trau­mat­ic sen­sa­tion of suffocation.”

Based on Alabama’s con­duct in exe­cut­ing James, Dr. Zivot, and two legal experts, Jon Yorke, Professor of Human Rights and the Director of the Centre for Human Rights at the Birmingham City University School of Law, and Deborah Denno, law pro­fes­sor and the Director of the Neuroscience and Law Center at Fordham University Law School, filed a human rights com­plaint with the United Nations on September 12, 2022 on Miller’s behalf. The com­plaint, sub­mit­ted to U.N. Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dr. Alice Jill Edwards, and UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Morris Tidball-Binz, argued that ​“there is an intol­er­a­ble risk that Mr. Alan Eugene Miller will receive tor­ture and an inhu­man form of pun­ish­ment dur­ing his exe­cu­tion sched­uled for 22 September 2022.” 

The com­plaint called for U.N. inter­ven­tion with the State of Alabama and the U.S. Secretary of State, say­ing “[i]t would be appro­pri­ate under inter­na­tion­al human rights law for the exe­cu­tion of Mr. Alan Eugene Miller to be sus­pend­ed until Alabama is able to ade­quate­ly review its execution protocol.”