Alabama Halts Alan Miller Execution

Updated 09.23.22

Alabama corrections officials announced after midnight Friday that the State halted its attempt to execute Alan Miller because, after trying for nearly two hours, prison staff could not access his veins.

The U.S. Supreme Court allowed the execution to proceed shortly after 9 pm on Thursday when it vacated an injunction barring the State from executing Mr. Miller by lethal injection. The injunction was granted by the federal district court on Monday and upheld by the Eleventh Circuit earlier Thursday.

Mr. Miller had challenged the State’s authority to execute him because he elected nitrogen hypoxia, and as the State told a federal court, it is unprepared to carry out an execution by nitrogen hypoxia this week. The district court’s preliminary injunction order prevents the State from executing Mr. Miller by any method other than nitrogen hypoxia.

In June 2018, the State of Alabama enacted a law that added nitrogen hypoxia as an alternative execution method to lethal injection. The law provided a 30-day window in which people sentenced to death were forced to choose between two different methods of execution—nitrogen hypoxia and lethal injection.

The use of nitrogen gas as a method of execution is untested and has never been used in the U.S.

Many people sentenced to death refused to cooperate in their own executions by choosing a method and others were unable to select nitrogen hypoxia because, without help, they could not adequately understand how to elect a new method of execution.

Those who did not affirmatively select nitrogen hypoxia before the deadline are now being prioritized for execution. The last nine men executed in Alabama were targeted for an execution date because they did not participate in their own executions by choosing an execution method.

The State has disputed that Mr. Miller filled out a form opting for nitrogen hypoxia because state officials are unable to find his form.

But the State’s failure to establish procedures for submitting a form to elect nitrogen hypoxia raises questions about the reliability of the State’s assertions. There are no published rules, for example, that explain how people on death row are supposed to select a method of execution.

And there are no internal operating procedures that courts or the public can review that would provide confidence about the determination of who gets an execution date and who does not.

The State has gotten this wrong before. On July 29, 2019, the State requested an execution date for Jarrod Taylor, stating in a motion that Mr. Taylor had not timely elected nitrogen hypoxia.

But Mr. Taylor had, in fact, “made a timely election of nitrogen hypoxia,” which caused the State to withdraw its request for an execution date for Mr. Taylor.

On September 19, the U.S. District Court for the Middle District of Alabama found that Mr. Miller presented “consistent, credible, and uncontroverted” evidence that he elected nitrogen hypoxia.

In a 61-page order, the court rejected the State’s central argument that Mr. Miller must not have submitted an election form “because the State does not have a copy of Miller’s completed form in its nitrogen hypoxia file.” There is no chain of custody regarding the completed forms, the court observed, and the State presented no evidence of standardized policy or procedure for prison officials to collect and retain the forms.

The court held that it is “substantially likely”—the legal standard for granting a preliminary injunction—that it would violate Mr. Miller’s rights under the Equal Protection Clause if the State executed him by lethal injection “even though he timely elected nitrogen hypoxia, while not pursuing execution by lethal injection for other inmates who timely elected nitrogen hypoxia.”

It also held that executing Mr. Miller by lethal injection is substantially likely to violate his procedural due process rights because the State enacted no safeguards to ensure that all properly submitted election forms were retained and “that no inmate who properly elected nitrogen hypoxia is executed by lethal injection.”

Because Mr. Miller would suffer irreparable injury if he were “deprived of the ability to die by the method he chose,” the court granted Mr. Miller’s request for a tailored injunction that requires the State to execute him by nitrogen hypoxia.

The State appealed the district court’s preliminary injunction and asked the Eleventh Circuit Court of Appeals to stay the injunction pending appeal. In an order issued on Thursday afternoon, the Eleventh Circuit denied the State’s motion because the State failed to argue, much less show, that it would suffer irreparable harm absent a stay and because the State did not challenge the lower court’s finding of fact that is substantially likely that Mr. Miller timely elected nitrogen hypoxia.

The State then filed an “emergency” motion asking the Supreme Court to vacate the injunction so that the State could proceed with the execution. The Court granted the State’s motion shortly after 9 pm. The order provides no reasoning; it says that Justices Sotomayor, Kagan, Barrett, and Jackson voted to deny the State’s application.