by Chuck Sharman
When his death warrant expired at 12:01 a.m. on September 23, 2022, condemned Alabama prisoner Alan Eugene Miller was still alive, capping a wild few days during which his execution was stayed by a federal judge and then reinstated by the U.S. Supreme Court before executioners tried and finally failed to insert a needle to administer a lethal injection.
Miller went back to his cell at Holman Correctional Institution, leaving it unclear when the state would try again to kill him. Gov. Kay Ivey (R) promised the execution would be scheduled “at the earliest opportunity.”
Executioners failed to find a suitable vein despite over an hour of attempts, at one point using a smartphone flashlight to aid their search, according to court filings made by Miller’s attorneys. That apparently validated needle phobia that drove Miller, 57, to elect to die by nitrogen hypoxia, after state voters approved the execution method following another botched execution in 2018. [See: PLN, Dec. 2018, p.36.] Under the procedure, gaseous nitrogen is administered to deprive the brain of oxygen and cause death. It is an approved method of execution also in Mississippi and Oklahoma.
But the state claimed it couldn’t find Miller’s election form and suggested he had never really submitted it, moving forward with plans to kill him by lethal injection. That prompted a suit by Miller’s attorneys which won a reprieve from the federal court for the Middle District of Alabama on September 19, 2022.
After reviewing Miller’s convictions — for the 1999 murders of three co-workers at two businesses — the district court turned to the pertinent questions. Could the state prove that Miller never submitted a form electing to die by nitrogen hypoxia? And was the state ready to carry out his killing by that method?
The answer to both questions was no, the district court found, meaning there was a substantial likelihood Miller would succeed on the merits of his case. It therefore granted a preliminary injunction. But with just three days before the prisoner’s death warrant expired and no way to kill him the way he asked, the state appealed.
The U.S. Court of Appeals for the Eleventh Circuit agreed with the district court on September 22, 2022. But that same day, the last day on which Alabama could kill Miller without obtaining a new death warrant, the U.S. Supreme Court split along gender lines to overturn that decision and reinstate the prisoner’s date with death, with Justice Amy Coney Barrett joining a dissent by the Court’s other three female — and more liberal — justices, Ketanji Brown Jackson, Elena Kagen, and Sonia Sotomayor. See: Hamm v. Miller, 2022 U.S. LEXIS 3388.
On September 23, 2022, the day after the failed execution attempt, the district court granted a request by Miller’s attorneys to photograph any wounds he may have suffered in the process. See: Miller v. Hamm, USDC (M.D. Ala.), Case No. 2:22-cv-00506.
Meanwhile Alabama still doesn’t have a protocol in place to execute those death-row prisoners who signed forms electing to die by nitrogen hypoxia that the state did not misplace. Proponents claim the procedure doesn’t allow the carbon dioxide build-up that causes feelings of suffocation. But Oregon Health and Science University oncologist and professor Dr. Charles D. Blanke said pulmonologists and anesthesiologists he’s interviewed disagreed with that.
Additional sources: Birmingham News, New York Times
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Related legal cases
Hamm v. Miller
|2022 U.S. LEXIS 3388
Miller v. Hamm
|USDC (M.D. Ala.), Case No. 2:22-cv-00506