At 9:25 PM on September 22, 2022, Alan Eugene Miller was informed that the U.S. Supreme Court, in an opinion devoid of explanatory reasoning, had overturned two lower courts and allowed the State of Alabama to proceed with his execution. The state would spend between 60 and 90 minutes that night trying to insert a needle, which in court filings, he claimed to be deadly afraid of, into his arm. They failed, and at midnight his execution warrant expired, forcing the State into a month-long process of obtaining a new one.[i] Mr. Miller’s case was just the latest of a string of litigations birthed by a simple amendment, conceived to offer death-row inmates an alternative to a less painful execution. However, the state of Alabama has continued to fail to follow through on said amendment’s promise.
On March 22, 2018, in response to several lawsuits challenging the State’s lethal injection protocol, the Alabama Legislature passed an amendment to the Alabama code which would allow nitrogen hypoxia as an elective method of execution[ii]. Nitrogen Hypoxia works by having the inmate breathe pure nitrogen. Nitrogen is normally a harmless gas representing 78% of the air we normally breathe, but exclusively breathing it deprives the body of the oxygen it needs to survive. Within a few minutes, the inmate would pass out and allegedly experience a painless death some time after that. [iii]
The amended Alabama code required death-row inmates to make their election of this new method in writing. If a certificate of judgment had been issued before June 1, 2018, the inmate would have 30 days from that date to deliver their method election.[iv] No election form was made available to the inmates by the State. Eventually, the Alabama Department of Corrections adopted and distributed a three-sentence election form created by the Federal Defenders for the Middle District of Alabama. The form did not mention the deadline to elect; it did not describe the execution method or explain the newly enacted law.[v] Importantly, at the time the amended code came into effect, Alabama did not have a protocol in place to execute inmates by nitrogen hypoxia. In fact, as of July 2022, they still had no such protocol.[vi]
In efforts to preserve their rights and stay their executions, inmates have made various claims ranging from statutory to constitutional. Some inmates have made claims under the Americans with Disabilities Act, arguing they were not given proper accommodations to understand what the amendment entailed or required. Others have argued that the State violated their Eight Amendment rights by forcing them to undergo the state’s current lethal-injection protocol, which they believe would cause cruel and unusual pain. Further, some have argued that the state violated their fourteenth amendment right to equal protection by either not allowing them to elect nitrogen hypoxia after the 30-day statutory period or by losing their timely given forms.[vii]
The district courts and the U.S. 11th Circuit Court of Appeals seemed open to entertaining these challenges in several cases. For example, in Price v. Comm’r, Dep’t of Corr, the court denied Price’s Eight Amendment claim and instead focused solely on Price’s inability to establish that nitrogen hypoxia significantly reduced a substantial risk of pain when compared to the current lethal injection protocol. The Court rested its reasoning on the fact that the expert report Price submitted as evidence was merely a draft stamped with the words “Do Not Cite.”[viii] Nonetheless, they held that despite the non-existence of a protocol for it in Alabama, nitrogen hypoxia qualified as an available alternative method under the test governing method of execution claims. This ruling opened the door for claims of this nature, regardless of the State’s ability to ready its nitrogen hypoxia protocol in time.
Mr. Miller himself made a novel argument in his motion to stay his execution. He claimed that the State’s decision to execute him by lethal injection, rather than by his elected method, was arbitrary and capricious in violation of the Eight Amendment.[ix] The language used in the claim is rooted in a Supreme Court case Furman v Georgia from 1972, where in Justice Douglas’s concurrence, he set forth the often-used rule that a state may not arbitrarily impose the death penalty[x]. But in the decades since Furman was decided, no case has invalidated a State’s post-sentencing procedures as impermissibly arbitrary.[xi] However, since they decided on other grounds, the district court did not address this claim.[xii] Notably, Mr. Miller did not preserve the claim on his appeal. Nonetheless, it remains another open avenue to challenge executions in Alabama after the code amendment, one that is novel enough to bring forth a case of first impression in the 11th Circuit and, if granted certiorari, in front of the Supreme Court.
While the Supreme Court has issued several opinions on nitrogen hypoxia-related cases coming out of Alabama, it has not weighed in on any of the issues or given any reasoning for its decision. It has instead simply vacated stays of executions granted by the lower courts.[xiii] In the meantime, the 48 inmates who elected nitrogen hypoxia[xiv] before June 30, 2018, in addition to every inmate on Alabama’s death row, are living over incertitude as to whether they will be executed by the method they specifically elected.
[i] Elizabeth Bruenig, Dead Man Living, The Atlantic (Oct. 2, 2022) https://www.theatlantic.com/ideas/archive/2022/10/alabama-inmate-execution-alan-miller/671620/.
[ii] James v. Marshall, No. 1:22-CV-241-TFM-N, 2022 WL 2679429, at *4 (S.D. Ala. July 11, 2022).
[iii] Dana G. Smith, New Execution Method Touted as More ‘Humane,’ but Evidence Is Lacking, Scientific Am. (Sept. 23, 2022) https://www.scientificamerican.com/article/new-execution-method-touted-as-more-humane-but-evidence-is-lacking/.
[iv] Ala. Code § 15-18-82.1(b)(2).
[v] Smith v. Comm’r, Alabama Dep’t of Corr., No. 21-13581, 2021 WL 4916001, at *5 (11th Cir. Oct. 21, 2021).
[vi] James v. Marshall, No. 1:22-CV-241-TFM-N, 2022 WL 2679429, at *4 (S.D. Ala. July 11, 2022).
[vii] Price v. Comm’r, Dep’t of Corr., 920 F.3d 1317, 1322 (11th Cir. 2019).
[viii] Id. at 1329-30.
[ix] Miller v. Hamm, No. 2:22-CV-506-RAH, 2022 WL 4348724, at *4 (M.D. Ala. Sept. 19, 2022), vacated, No. 22A258, 2022 WL 4391940 (U.S. Sept. 22, 2022).
[x] Furman v. Georgia, 408 U.S. 238, 249 (1972).
[xi] See Jones v. Davis, 806 F.3d 538, 551 (9th Cir. 2015).
[xii] Miller v. Hamm, No. 2:22-CV-506-RAH, 2022 WL 4348724, at *4 (M.D. Ala. Sept. 19, 2022).
[xiii] See Dunn v. Price, 203 L. Ed. 2d 702, 139 S. Ct. 1312 (2019); Hamm v. Reeves, 142 S. Ct. 743 (2022); Hamm v. Miller, No. 22A258, 2022 WL 4391940, at *1 (U.S. Sept. 22, 2022).
[xiv] James v. Marshall, No. 1:22-CV-241-TFM-N, 2022 WL 2679429, at *4 (S.D. Ala. July 11, 2022).
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