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Execution halted at last minute when Alabama prison staff can’t find vein

Sept. 23, 2022 Updated Fri., Sept. 23, 2022 at 9:36 p.m.

By Kim Bellware and Derek Hawkins Washington Post

The Alabama Department of Corrections suspended a late-night execution Thursday after it couldn’t find a vein while preparing prisoner Alan Eugene Miller for lethal injection, a delay the state later blamed on a flurry of last-minute legal filings that went all the way to the U.S. Supreme Court.

The cancellation comes after a week of legal battles over which method the state would use to execute Miller, a back-and-forth that death-penalty opponents say reveals larger dysfunctions around how capital punishment operates – or fails to – in the 27 states that still carry out executions.

Miller, 57, was sentenced to death for a 1999 workplace shooting in which he killed Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey, according to court records. The men were Miller’s current and former co-workers whom he had accused of spreading rumors about him, including that he was gay.

He asserted in legal filings the state lost or misfiled his request to be put to death by nitrogen hypoxia, a form of suffocation, after the state approved it in 2018 as an alternative to lethal injection. When the Alabama Department of Corrections said last week it would not to be ready to use nitrogen hypoxia in time for Miller’s scheduled Sept. 22 execution, a federal district court stayed his execution, a decision that was upheld Thursday by a federal appeals court.

The execution was stalled until around 9 p.m. Thursday, when Supreme Court justices voted 5-4 to lift a lower court’s injunction. Alabama Department of Corrections Commissioner John Hamm ultimately halted the execution effort around 11:30 p.m., saying in a statement that prison staffers could not find a vein “in accordance with ADOC protocol.”

The department did not detail what transpired in the two and a half hours between the high-court ruling and the calling off of Miller’s execution.

The lack of transparency around the failed execution and the state’s yet-unused nitrogen hypoxia protocol only serve to undermine the legitimacy of the death penalty as constitutional or reliable, said Robert Dunham, executive director of the Death Penalty Information Center.

“When states refuse to be open about issues like this, that’s a big red flag,” Dunham said. “You botch three executions and say, ‘Trust me, I’m Alabama,’ that is not a good justification.”

Alabama has had at least two other executions since 2018 that watchdog groups say were botched, including the state’s most recent execution in July of Joe Nathan James. According to a private autopsy detailed in the Atlantic, James probably was subjected to the longest lethal injection in its 40-year history as an execution method – and corrections staff began the process well before media witnesses were allowed into the death chamber.

Botched lethal injections have led to grand jury probes and years-long moratoriums in states including Oklahoma, while Tennessee Gov. Bill Lee (R) in May announced a temporary execution reprieve so the state could investigate a “technical oversight” in the state’s lethal injection protocol.

As legal scrutiny of the death penalty has grown and the availability of approved lethal injection drugs has fallen, states have increasingly sought alternative methods, including once-retired ones like the electric chair, and never-before used ones like nitrogen hypoxia.

Nitrogen hypoxia involves depriving prisoners of oxygen and forcing them to breathe pure nitrogen; plummeting blood-oxygen levels would cause the prisoner to lose consciousness and eventually die of cardiac arrest, possibly in a matter of minutes.

Alabama, Oklahoma and Mississippi have approved nitrogen hypoxia as an execution method, but none have revealed their protocols.

In court this month, an Alabama prosecutor told a federal judge it was “very likely” that officials would be able to use nitrogen hypoxia by Miller’s execution date. But soon after, Alabama Corrections Commissioner Hamm said in an affidavit that the state could not carry out executions using the method because officials had not finished protocols for doing so.

“Whether states are trustworthy to carry out their own protocols is separate from the huge issue of secrecy and the lethal drug issues,” Dunham said. “What we’re seeing is that most states are not interested in carrying out executions. And the ones that are are engaging in extreme conduct and doing so with utter disregard for the law.”

Daniel Neppl, Miller’s lead attorney, did not immediately respond to a request for comment following the late-night cancellation Thursday, but in his response to the Alabama attorney general’s petition to the U.S. Supreme Court, he criticized the state for the rush.

“What is the emergency?” Neppl wrote. “Mr. Miller is not going anywhere, and neither is the Alabama Department of Corrections.”

Neppl wrote that Miller is not requesting an “open-ended” stay of execution, only a delay so that he can be put to death by his preferred method..

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