Jurisprudence

Alabama Wants to Become the Second State in 76 Years to Get an Execution Do-Over

People with umbrellas hold up a sign that say "stop state violence" as they sit in camping chairs.
Protesters participate in a vigil against the death penalty in front of the U.S. Supreme Court on June 29, 2021. Alex Wong/Getty Images

Last month, Alabama botched its first attempt to execute Alan Miller. Now it wants another chance to put him to death. The state, one of the nation’s leaders in executions, tried to kill Miller by lethal injection on September 22. But, with time running out before Miller’s death warrant would expire, the officials in charge of his execution stopped it because they knew they had failed.

These officials gave up after 90 minutes of jabbing him repeatedly with needles as they tried to find a vein to insert the IV line that would carry the deadly chemicals.

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Last week Miller went to court to prevent Alabama from going forward with its plan to try again to use lethal injection to kill him.

Miller, who was sentenced to death for the killing of three men in two workplace shootings in Shelby County in 1999, says he is terrified of needles and that his veins are compromised. He has repeatedly said that if Alabama insists on executing him, it should be done by nitrogen hypoxia.

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Alabama added this method to its menu of available execution options in 2018, but the state insists it is not yet ready to use it.

Whatever the execution method, death is always a cruel punishment. But it is never more so than when someone has experienced that cruelty first hand and then survived.

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While courts have yet to acknowledge that trying to execute someone more than once inherently constitutes cruel and unusual punishment, and thus violates the constitution, neither Alabama nor any other state should be afforded a second chance to get an execution right.

Botched executions, like Miller’s, are nothing new in American history, and lethal injection has proven itself to be this nation’s least reliable execution method. Over the last decade, botched lethal injections have occurred with increasing frequency as states have experimented with new drugs and drug combinations.

And difficulties accessing a useable vein also are common occurrences. Miller’s is the third Alabama execution since 2018 where state officials have spent hours repeatedly jabbing inmates with needles as they tried without success to find such a vein.

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But most botched executions are not stopped no matter how much suffering the condemned person experiences. Usually the inmate who suffers from the state’s negligence or incompetence ends up dead.

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Miller is only the fifth person in the last 76 years to survive an execution. And, if Alabama gets its way, he would be only the second one to live long enough to face another execution attempt.

The stories of these execution survivors remind us of the ways that executions fail and also of the tortured logic courts have used to allow states a second chance when the first one doesn’t succeed.

Let’s start with Louisiana’s 1946 effort to put Willie Francis to death in the electric chair. Francis, a Black teenager, was convicted and sentenced for the murder of Andrew Thomas, a pharmacy owner who had once employed him. Willie was 16 at the time of the murder.

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The prison guard in charge of readying the state’s electric chair, which was known as Gruesome Gertie, did so while intoxicated. As a result of his negligence, the chair malfunctioned and failed to deliver enough electrical current to kill Francis.

Soon after the executioner threw the switch, Francis screamed in pain, and the execution was stopped.

Undaunted, Louisiana wanted to try again. Francis sued to prevent it from doing so. He claimed that a second execution attempt would violate the constitution’s prohibition of cruel and unusual punishment and of double jeopardy.

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The United States Supreme Court disagreed.

The Court allowed Louisiana to proceed with the second execution because, it reasoned, the failure of the first was an “accident” rather than the result of a deliberate attempt to make Francis suffer.

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As Justice Stanley Reed explained in his majority opinion, “When an accident, with no suggestion of malevolence, prevents the consummation of a sentence, the state’s subsequent course in the administration of its criminal law is not…double jeopardy…The fact,”  Reed continued, “that an unforeseeable accident prevented the prompt consummation of the sentence cannot…add an element of cruelty to a subsequent execution.”

Willie Francis died in Louisiana’s electric chair on May 9, 1947, almost one year to the day after the first execution attempt.

More than a half century later, Romell Broom became the next execution survivor when Ohio attempted to execute him by lethal injection. His execution was stopped when the execution team could not establish a workable IV line. Over a two hour period, prison officials had tried inserting the IV in 18 different sites on his arms and legs.

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Like Willie Francis, Broom failed to persuade courts that a second execution would be  unconstitutional. As the Ohio State Supreme Court put it, the “establishment of viable IV lines is a necessary preliminary step, but it does not, by itself, place the prisoner at risk of death. As the (state) statute makes clear, the execution commences when the lethal drug enters the IV line.” Since the lethal drugs had not begun to flow through the tubes, Broom’s punishment had not begun. Ohio could try again.

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But the state never got the chance to do so. Broom died of COVID-19  at age 64.

The lethal injections of the other two execution survivors, Alva Campbell in 2017 and Doyle Hamm in 2018, were also stopped when their executioners failed to find places to insert IV lines. Both got sick subsequently and passed away while they were in custody.

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The lawsuit Alan Miller filed last week alleges that, like Broom, Hamm and Campbell, his attempted execution was torturous. As members of Alabama’s execution team tried over and over again to insert an IV needle into his veins, they stuck needles into various places on his arms, hands and feet. They even began “slapping the skin on his neck” as they considered inserting a needle there.

When they put the needle into his right foot, Miller says, that he “’knew something was wrong because he felt a sudden and severe pain.” He “felt like he had been electrocuted, and his entire body shook in the restraints.’”

According to a report in The Atlantic, after these failures, Miller was “left suspended vertically from a cross-shaped table, hands and one foot bleeding” for more than 20 minutes, while officials considered what to do.

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Eventually he was returned to his execution holding cell “in a deep state of shock and post-traumatic stress.”

The precedents set in the Francis and Broom cases, as well as the current Supreme Court’s enthusiasm for the death penalty, do not bode well for the fate of Alan Miller. But it is long past time for this country to say unequivocally that where the death penalty is concerned the government should get no second chances.

No one who survives an execution attempt should ever have to face the prospect of a return to the death chamber.

As Justice Harold Burton put it in his dissent in the Francis case, giving the government the go ahead to carry out a second execution “shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people.”

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