With the Supreme Court’s last-minute blessing, Alabama was all set to execute Alan Miller last Thursday night, until it wasn’t. But it’s not as if they didn’t try to kill him. The drama was high: the state called off his execution just minutes before midnight when its death warrant was set to expire. The execution team had run into difficulties finding a usable vein.
Asked to explain what went wrong in this latest botched lethal injection, Alabama’s Corrections Commissioner John Hamm merely said that the execution was called off because “accessing the veins was taking a little bit longer than we anticipated.”
Stopping Miller’s execution is the latest twist in a case that has had more than its share of false starts and put the cruelty of capital punishment vividly on display
In our democratic culture, the state’s taking of life is thought to be profoundly unsettling, and it is of course universally true that death is irreversible. So death cases are supposed to be handled with extraordinary care.
In Miller’s case, we have seen the exact opposite. What stands out is both Alabama’s extraordinary carelessness and the Supreme Court’s cold indifference to that carelessness.
There is, of course, a lot we don’t yet know and may never know about what Alabama did from the time it got the go ahead to execute Miller to the time it halted his execution. This period of time is marked by what, in the run up to the American invasion of Iraq, the late Secretary of Defense Donald Rumsfeld once labeled the “known unknowns.”
Both the unknowns and knowns of the Miller case all point in the same troubling direction. They highlight the chaos and sloppiness, as well as the cruelty, of Alabama’s effort to put him to death. Similar chaos and the same stunning cruelty haunt the death penalty system everywhere it is used in this country.
Among the unanswered questions:
How many times did Alabama’s execution team poke and jab Miller with needles?
In what parts of his body did it try to secure the IV line needed to carry out his lethal injection?
Did Alabama inflict the same kind of suffering that it inflicted when it couldn’t find the veins of Doyle Hamm in 2018 and Joe Nathan James last July during their gruesome botched executions?
We may learn more as time goes on, but there are certain things we know now.
We know that Miller is terrified of needles, and he does not want to die by lethal injection.
We know that Alabama added nitrogen hypoxia to its authorized execution methods in 2018.
We know that it offered Miller and all its other death row inmates the chance to avoid the needle by choosing nitrogen hypoxia. The state required them to notify the state in writing within 30 days if they wanted to die in that way.
We know that there is a serious dispute about whether Miller submitted the form needed to elect that execution method. He contends that he turned in the form. The state says that it never received it.
We know that Miller wanted a hearing to resolve the dispute about the form and for a judge to permanently enjoin Alabama from doing what to tried to do last week: execute him by lethal injection.
We know that Federal District Judge R. Austin Huffaker, a Trump appointee and two of the three judges on a panel of the 11th Circuit Court of Appeals agreed that Alabama should be stopped from doing so, at least temporarily.
And we know that at 9 pm on September 22, the U.S. Supreme Court tossed those decisions aside, denied Miller the relief he was seeking, and gave Alabama the green light to use lethal injection to kill him.
It did so by a 5-4 vote, with Justice Amy Coney Barret again joining the Court’s three liberal Justices as she has done in a few other death cases. The majority did not bother to produce an opinion explaining why it was allowing Miller’s execution to proceed.
Let’s look at the reasons why Judge Huffaker and two appellate judges thought that Miller’s execution should be put on hold before we return to consider the Supreme Court decision.
On September 19, Judge Huffaker issued a preliminary injunction stopping Miller’s execution after hearing testimony from the state and from Miller. He made clear that he was not issuing a final ruling on the merits of the plaintiff’s allegations about the lost form.
During the hearing on the preliminary injunction, Judge Huffaker did what trial judges are supposed to do. He carefully evaluated the credibility of the witness testimony.
His conclusion: “The Court finds substantially credible Miller’s testimony that he timely submitted a nitrogen election form.”
All that the state said in response was that it did not have the form. But as the judge noted, this “does not mean it was not received…It could have simply been misplaced after receipt….”
Judge Huffaker also went out of his way to note the slipshod manner in which Department of Corrections officials had handled the methods of execution forms. As he put it, “Here, the Court has before it no evidence of a standardized policy or procedure for ADOC officials to collect and transmit completed forms…for logging and retention.”
And the judge remarked that Alabama had not adhered to the most basic requirements of responsible behavior in handing important documents. “There was no evidence,” Judge Huffaker said, “of a chain of custody from the time forms were collected…to other ADOC officials.”
The judge concluded that the plaintiff had “demonstrated a substantial likelihood of success” on his legal claims and that he would suffer irreparable injury if the court did not issue an injunction.
In the American legal system, appellate courts traditionally accord great deference to the factual findings of trial judges.
On Wednesday, the 11th Circuit Court of Appeals followed that tradition. It noted that Alabama did not challenge as “clearly erroneous, any of the district court’s factual findings….That is, we think, because on this record the State cannot show that any findings are clearly erroneous.”
The 11th Circuit panel agreed with Judge Huffaker’s conclusions about Miller’s likelihood of success and the irreparable injury he would suffer.
But the ink was hardly dry on its ruling when the Supreme Court handed down its decision.
Five of the Court’s conservative Justices disregarded the tradition of deferring to the trial court’s findings of fact and allowed Miller’s execution to proceed despite substantial evidence of Alabama’s negligence and carelessness.
This case highlights their willingness to cut corners and limit legal rights in order to let states carry out executions. That Chief Justice John Roberts, who has invested so much in trying to repair the Supreme Court’s damaged reputation, sided with the majority is another puzzling aspect of this case.
Neither the Chief Justice nor the others in the majority gave Miller the courtesy of an explanation. And, shockingly, the fact that someone’s life was on the line made no difference to them.
Many have commented on the Court’s increasing tendency to rule without writing an opinion. When they do so, the Justices in the majority send a clear signal: They can make those decisions just because they have the votes to do so, not because reason compels the result.
In Miller’s case, the Justices who silently condemned him to death reminded us what Justice Robert Jackson’s once said about himself and his fellow Justices: “We are not final because we are infallible, but we are infallible only because we are final.”