Alabama halts execution at last minute of inmate who disputed method after determining it could not be completed by midnight deadline, officials say

By Tina Burnside and Dakin Andone, CNN

The state of Alabama halted the execution of a death row inmate Thursday evening due to an inability to meet protocols before a midnight deadline, officials say.

Alan Eugene Miller was scheduled to be executed by lethal injection after a US Supreme Court ruling earlier Thursday vacated a lower court injunction in a long-running dispute over whether Miller would die by that method or nitrogen hypoxia, an untested and unproven method Alabama officials had said they were not ready to use.

But after the Supreme Court ruled the execution could proceed by lethal injection, state officials Thursday said they couldn’t access Miller’s veins within time limits, according to AL.com.

“Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” said Alabama Department of Corrections Commissioner John Hamm, according to AL.com.

Miller has been returned to his cell on death row, Hamm said. Gov. Kay Ivey “anticipates that the execution will be reset at the earliest opportunity,” her office said in a statement.

Hamm met with the victims’ families to notify them of the cancellation before meeting with the press, Ivey said in a statement obtained by CNN.

“Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision. It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve,” Ivey said.

Miller was sentenced to death for the murders of his former and contemporary co-workers, Lee Michael Holdbrooks, Christopher S. Yancy and Terry Lee Jarvis, each of whom was fatally shot. A forensic psychiatrist who testified for Miller’s defense determined he was mentally ill and suffering a delusional disorder, leading him to believe the victims were spreading rumors about him. The psychiatrist concluded, however, that Miller’s mental illness didn’t meet the standards for an insanity defense in Alabama.

Untested execution method at issue

The aborted execution attempt followed weeks of legal battles between the state and Miller’s attorneys over the method by which he would die — a fight that ultimately concluded at the Supreme Court.

On Monday, a federal district court judge had blocked the state from putting Miller to death by any method other than nitrogen hypoxia — an execution method never before used in the US that critics and experts say has yet to be proven humane or effective despite its proponents’ claims it could be safer, easier and cheaper than lethal injection.

The inmate had sued the commissioner of the Alabama Department of Corrections, the state attorney general and his warden, alleging corrections officials were moving to execute him by lethal injection after losing paperwork in which he claimed to have chosen to die by nitrogen hypoxia.

The failure to honor his request, Miller’s complaint said, violated his constitutional rights.

State officials — who suggested Miller had made no such choice and that they had no record of his preference — indicated in court filings they were not ready to use nitrogen hypoxia, which Alabama approved as an alternative execution method in 2018.

The department had “completed many of the preparations necessary for conducting executions by nitrogen hypoxia,” but its protocol was “not yet complete,” it told CNN last week in a statement. “Once the nitrogen hypoxia protocol is complete, (department) personnel will need sufficient time to be thoroughly trained before an execution can be conducted using this method.”

SCOTUS vacates injunction stopping execution

State officials appealed the district court judge’s order, asking the US Court of Appeals for the Eleventh Circuit to allow it to move ahead with Miller’s execution by lethal injection.

The Eleventh Circuit upheld the lower court’s order, writing in a 32-page ruling that the district court had found it was “substantially likely that Mr. Miller submitted a timely election form even though the State says that it does not have any physical record of a form.”

“The State does not challenge that factual finding, and has completely failed to argue (much less show) that it will suffer irreparable harm,” the order said.

State officials appealed to the US Supreme Court, which in a Thursday night order ruled 5-4 that the execution could move forward. Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson voted to leave the stay in place.

The claims of those who back executions by nitrogen gas might sound appealing, considering states’ continued problems obtaining the drugs for lethal injections and with recent executions deemed botched, either because an inmate suffered inordinately or because the process deviated from officials’ prescribed protocol.

But critics and experts reject those arguments, saying there is no proof executions by nitrogen hypoxia would adhere to inmates’ constitutional protection against cruel and unusual punishment because it has never been used and could never be ethically tested.

But inmates like Miller are opting for the unproven method due to concerns over the level of pain they might suffer during lethal injection, Robert Dunham, of the Death Penalty Information Center, told CNN: “They are opting for a method that they hope will not be torturous over a method that they are certain will be torturous.”

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CNN’s Ariane de Vogue contributed to this report.