Alan Miller Asks Federal Court to Bar Alabama from Second Attempt to Execute Him By Lethal Injection

Alan Eugene Miller has asked fed­er­al courts to bar Alabama from set­ting a sec­ond exe­cu­tion date days after the Alabama Attorney General’s office filed a motion in the state’s Supreme Court to expe­dite a new exe­cu­tion war­rant. The state attempt­ed to exe­cute Miller on September 22, 2022, but called off the exe­cu­tion after fail­ing to estab­lish an intra­venous (IV) line.

On October 4, 2022, the Alabama Attorney General’s office filed an expe­dit­ed motion in the Alabama Supreme Court ask­ing the court to dis­re­gard estab­lished pro­ce­dure and set a sec­ond exe­cu­tion date for Miller ahead of James Barber, for whom the state filed a motion to set an exe­cu­tion date on August 5. Typically, the court can only set exe­cu­tion dates in the order in which the requests were filed. The state’s motion cites time con­straints as a fac­tor that ​“limited…the num­ber of attempts to gain intra­venous access” dur­ing the botched September 22 attempt to execute Miller. 

Miller’s law­suit against John Hamm, Commissioner of the Alabama Department of Corrections (ADOC), ques­tions the state’s abil­i­ty to per­form an exe­cu­tion ​“in the near future—without tor­tur­ing Mr. Miller,” a task they ​“could not accom­plish in three hours on September 22.” Around 9 pm on September 22, the U.S. Supreme Court over­turned a low­er court’s injunc­tion bar­ring the state from exe­cut­ing Miller by any method oth­er than nitro­gen hypox­ia. Miller said he had select­ed that method of exe­cu­tion when the state autho­rized it, but the state said it had no record of his choice. Prison offi­cials attempt­ed to set an IV line for approx­i­mate­ly 90 min­utes, pok­ing Miller with a nee­dle as many as 18 times. When they failed to set the IV line before Miller’s exe­cu­tion war­rant expired at mid­night, they called off the execution. 

On October 6, the Alabama Supreme Court grant­ed Miller’s request for addi­tion­al time to respond to the state’s motion, post­pon­ing the dead­line until October 25. Concurrently, on October 6, Miller filed a motion to file an updat­ed law­suit, or sec­ond amend­ed com­plaint, in the U.S. District Court for the Middle District of Alabama. The court grant­ed the request and received the sec­ond amend­ed com­plaint on October 12. The sec­ond amend­ed com­plaint includes a list of ques­tions for the Alabama Attorney General’s office, such as the iden­ti­fi­ca­tion and role of indi­vid­u­als involved in the botched exe­cu­tion attempt, as well as a ​“request for pro­duc­tion” of relat­ed doc­u­ments, com­mu­ni­ca­tions, and evi­dence. In an October 13 order, the fed­er­al court direct­ed the Alabama Supreme Court to share updates regard­ing the exe­cu­tion motion. On October 17, Miller filed for expe­dit­ed dis­cov­ery, includ­ing anoth­er set of ques­tions and requests for evi­dence. U.S. District Judge R. Austin Huffaker grant­ed the request, giv­ing the state until October 19 to respond.

A sep­a­rate law­suit was filed by Kenneth Eugene Smith, who is sched­uled to be exe­cut­ed on November 17. Smith alleged that Alabama’s lethal-injec­tion pro­to­col is uncon­sti­tu­tion­al because it cre­ates an intol­er­a­ble risk of tor­ture, cru­el­ty or sub­stan­tial pain. He cit­ed the botched exe­cu­tion of Joe Nathan James and the state’s attempt to exe­cute Miller as evi­dence of the dan­ger of the state’s pro­to­col. Judge Huffaker held a hear­ing in that case on October 13, where he asked about ADOC’s thresh­old for mov­ing to a cen­tral line pro­ce­dure (insert­ing a nee­dle into the neck or groin), which is per­mit­ted under Alabama’s exe­cu­tion pro­to­col, and call­ing off an exe­cu­tion due to dif­fi­cul­ty in find­ing a vein. ​“Is it 10 pokes? Is it 11? Is it 100? Is it one hour? What is it?” asked Huffaker. Assistant Attorney General Richard Anderson, who was rep­re­sent­ing ADOC, did not know the answer. Judge Huffaker dis­missed Smith’s law­suit on October 16.