Whether Alabama's execution process violates the Eighth Amendment

QUESTIONS PRESENTED Up until Joe James’ execution in July 2022, the expectation was that in Alabama, consistent with the prevailing practice, the most overwhelming part of the execution process, when the condemned enters the chamber until the time of death, would take minutes. See, e.g., Arthur v. Comm’r, Ala. Dep’t of Corr., 680 F. App’x 894, 913 (11th Cir. 2017) (noting that execution process takes “minutes”. In the last two years, however, the State of Alabama has botched at least four out of the last six executions, forcing condemned prisoners to the execution chamber and strapping them to the execution-gurney for hours. While these executions have been carried out in secret without access to counsel, evidence of this extended execution process has come to light through survivor stories after botched executions as well as from independent autopsies. Mr. Mills filed a § 1983 complaint requesting very limited and readily implementable modifications to Alabama’s current execution process: prohibiting Defendants from unnecessarily restraining Mr. Mills on the execution-gurney while stay litigation is pending, and requiring the State to permit Mr. Mills’ legal counsel to be present with phone access in the execution chamber. These facts give rise to two important constitutional questions: 1. Whether given the unique pattern in Alabama’s recent executions, in which Defendants have misrepresented critical facts and prohibited access to courts or counsel, Mr. Mills is likely to succeed on his claim that unnecessary, cruel, and prolonged restraint on the gurney, as well as refusals to provide information regarding ongoing litigation or steps in the execution process violates the Eighth Amendment. 2. Whether, based on this unique and acute context where there can be no enforcement of the relief sought without the presence of counsel, Mr. Mills is entitled to the presence of counsel and access to courts pursuant to the Sixth Amendment and the Due Process Clause. i