The Texas Supreme Court halted Robert Roberson’s scheduled execution late Thursday night, following an extraordinary series of legal twists and turns spurred by a bipartisan group of state lawmakers.

The legislators, including influential members of the House Criminal Jurisprudence Committee, deployed a sequence of jiu-jitsu-like moves to give Roberson a chance to prove his innocence. Their efforts centered around a first-of-its-kind statute in Texas that allows people incarcerated based on flawed forensics to challenge their convictions.

“The vast team fighting for Robert Roberson — people all across Texas, the country, and the world — are elated tonight that a contingent of brave, bipartisan Texas lawmakers chose to dig deep into the facts of Robert’s case that no court had yet considered and recognized that his life was worth fighting for,” Roberson’s lawyer, Gretchen Sween, said in a statement. “He lives to fight another day and hopes that his experience can help improve the integrity of our criminal legal system.” 

Roberson was sent to death row in 2003 for killing his 2-year-old daughter Nikki. Medical professionals attributed the child’s death to so-called shaken baby syndrome, or SBS: a diagnosis based on the belief that a certain combination of injuries found in a baby or toddler could only be caused by violent shaking. This theory has since been disproven by scientific research. Across the country, 34 people convicted based on SBS have been exonerated, according to the National Registry of Exonerations.

Roberson, who insists he is innocent, challenged his conviction using the state’s so-called junk science law. But Texas courts ignored the overwhelming evidence undermining the state’s case against him, greenlighting his execution on October 17. As that date approached, Roberson gained the support of a bipartisan group of more than 80 Texas lawmakers, who implored both the board and the courts to spare his life.

Separation of Powers

Less than two hours before the 6 p.m. scheduled execution on Thursday, Texas Republican Rep. Jeff Leach and Democrat Rep. Joe Moody sought a restraining order to block the state from killing Roberson. The day before, members of the Texas House’s criminal jurisprudence committee had held an eight-hour hearing on capital punishment and the state’s junk science law. The hearing focused almost exclusively on Roberson’s case and concluded with the unprecedented decision to subpoena him to testify at a hearing on October 21 — four days after his scheduled execution.

The lawmakers’ dramatic move came after the Texas Court of Criminal Appeals had already rejected Roberson’s most recent appeal, and the Board of Pardons and Paroles had declined to recommend clemency. 

During a short hearing Thursday afternoon before a judge in Austin, Moody argued that the committee members have independent legal power to subpoena witnesses who are crucial to their job of ensuring state laws are operating as intended. In this case, Moody said that hearing testimony made it “very clear” that Texas courts are not following the junk science statute. 

“That is inappropriate, that is improper,” he told the judge. “And if that’s the case, it is absolutely within the legislature’s jurisdiction, and within our power, to be able to look at that. And that is the crux of why we need Mr. Roberson to testify.” 

Ed Marshall, a state assistant attorney general, argued that “Shaken Baby Syndrome just doesn’t play a role” in Roberson’s case and that the judge had no power to counter the Court of Criminal Appeals’ decision to deny his appeals. Still, he conceded that the lawmakers’ subpoena was valid and legal. The judge granted the restraining order, and the AG’s office appealed to the Court of Criminal Appeals, which sided with the state, writing that “no other court of this state has the authority to overrule or circumvent its decisions, or disobey its mandates.” 

The issue, however, was not actually for the Court of Criminal Appeals to decide. While the court has jurisdiction and final say over criminal matters in the state, the restraining order was issued as part of a civil law process where the lawmakers were attempting to invoke their legislative rights. The lawmakers appealed to the Texas Supreme Court, which has the final say on civil matters, to make their case. 

Shortly before midnight, the Supreme Court weighed in, explaining that the situation raised serious questions about the separation of powers. “The question implicates the distribution of authority among the three branches of government, pitting two branches against the other,” Justice Evan Young wrote. After the CCA denied Roberson’s appeals, the state’s department of corrections — an executive branch office — was tasked with carrying out the execution. In seeking to stop the department from doing so, the lawmakers were flexing their legislative branch muscles, creating the conflict. 

“Would proceeding with an execution in these circumstances entail the executive branch’s intrusion into the broad authority of the legislative branch?” Young wrote. “Or, contrariwise, would allowing various committees of the Legislature to subpoena an inmate who is subject to an impending death sentence constitute the legislative branch’s intrusion into the orderly functioning of the law, risking manipulation of the judicial process … ?”

Faced with this conflict, the Texas Supreme Court said that it, and not the Court of Criminal Appeals, had the job of deciding whether the restraining order should stand. 

A Chance to Be Heard

The effect of the ruling was to block the state from carrying out the execution — for now. The Supreme Court urged the district court to address the separation of powers issues quickly. In the meantime, Roberson is expected to appear at the House committee’s hearing on October 21.

The committee members are determined to amend the junk science writ to ensure that it works as intended and that Roberson has an opportunity to avail himself of its protections. Because the Texas Legislature only meets in odd-numbered years, that would likely mean forestalling Roberson’s execution until the fall of 2025.

The eleventh-hour stay of execution came many hours after Roberson’s legal options appeared to have run out. His legal team had unsuccessfully appealed to the U.S. Supreme Court, to take up the case. In a statement, Justice Sonia Sotomayor wrote that Roberson had not raised an issue the federal court could readily address, but she echoed the Texas lawmakers’ concerns, lamenting that convictions rooted in junk science have proven hard to overturn in the courts. “This case is emblematic of this problem,” she wrote. And while Sotomayor has previously called on states to pass junk science laws like Texas’s, she noted that “tragically, that statute did not help Roberson in this case.”

Sotomayor called out the Court of Criminal Appeals for its disparate treatment of Roberson in light of the Texas court’s decision to order a new trial last week in a different case that turned on SBS. As the court “has itself confirmed, the scientific basis for shaken baby syndrome has since been called into significant question,” the justice wrote. Roberson’s case relied on the same medical expert, she noted, and yet the court looked the other way. Though the Supreme Court lacked jurisdiction to halt Roberson’s looming execution, Sotomayor described it as a potential “miscarriage of justice.” 

“Few cases more urgently call for such a remedy than one where the accused has made a serious showing of actual innocence, as Roberson has here.”

Moody and Leach celebrated the Texas Supreme Court’s ruling in a statement late Thursday night. “While some courthouses have failed him, the Texas House has not,” they wrote.

“We’re deeply grateful to the Texas Supreme Court for respecting the role of the Texas legislature in such consequential matters. We look forward to welcoming Robert to the Texas Capitol, and along with 31 million Texans, finally giving him — and the truth — a chance to be heard.”

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On the witness stand in March 2000, Dr. Janet Squires was unequivocal: The injuries suffered by the 13-month-old girl were “absolutely classic” signs of shaken baby syndrome. Commonly referred to by its acronym, SBS is a diagnosis based on the belief that a certain combination of injuries found in a baby or toddler could only be caused by violent shaking.

“When a baby is shaken their head flops back and forth like this,” she testified, demonstrating the violent force needed to cause injury. “And the rotational forces through the brain literally sort of shear the tissues of the brain.”

Coming from the then-director of pediatrics at Children’s Medical Center in Dallas, Squires’s testimony would be crucial to the conviction of Andrew Wayne Roark, who was sentenced to 35 years in prison for violently shaking his girlfriend’s daughter, causing permanent brain damage.

Roark insisted he was innocent. Three years earlier, in July 1997, Roark was babysitting the child, referred to in court documents as B.D., while her mother was at work. He took B.D. to the doctor for a regular check-up, then fed her ravioli for lunch before giving her a bath. According to Roark, the infant slipped in the tub, hitting the back of her head, but she seemed fine and Roark put her down for a nap. When he went to check on her, however, he found her face down next to the bed. She was limp, pale, and barely breathing. Roark called 911. At Children’s Medical Center, Squires determined that B.D. had been violently shaken. Roark was arrested that night and charged with injuring her.

A few years later, Squires would play a key role in securing a guilty verdict against another man, Robert Roberson, whom she said had violently shaken his 2-year-old daughter to death. “You really have to shake them really hard back and forth and then you typically slam them against something,” she testified at Roberson’s trial. “It’s an out of control, angry, violent adult.” Roberson, who maintained his innocence, was sentenced to death. (Squires did not respond to The Intercept’s request for comment.)

In the years after both men were sent to prison, the symptoms once believed to be indicative of SBS were called into question. For years, doctors like Squires had claimed that a triad of symptoms — subdural hematoma, brain swelling, and retinal hemorrhage — could only be explained by violent shaking. But subsequent research demonstrated that it is physically impossible for a human to cause such injuries by shaking alone and that each of the symptoms could be the result of myriad medical causes. To date, 34 people convicted based on SBS have been exonerated, according to the National Registry of Exonerations.

In 2013, Texas enacted a first-of-its-kind law, allowing people prosecuted on the basis of junk science to challenge their convictions. Roark successfully argued to his trial court that SBS had been discredited and that he was entitled to a new trial. Last week, the Texas Court of Criminal Appeals agreed that key medical experts in Roark’s case would not testify the same way if the trial were to take place today: “We find that if the newly evolved scientific evidence were presented … it is more likely than not, he would not have been convicted.” 

Like Roark, Roberson challenged his conviction under the state’s junk science statute and presented evidence to his trial court that the experts against him had relied on supposed symptoms of SBS that have since been discredited. 

But unlike Roark, the judge in Roberson’s case disagreed that a change in the science had undermined his conviction. The Court of Criminal Appeals signed off on the judge’s conclusions, providing no explanation for its decision and clearing the way for Roberson’s execution. Texas plans to kill him on Thursday.

The Court of Criminal Appeals’ decisions in the two cases leaves an irreconcilable disparity: In Roark’s case, the court concluded that expert testimony about SBS was unsupported by science, while simultaneously deciding, in Roberson’s case, that it’s perfectly fine to send a man to the death chamber based on such testimony.

“The same prosecution expert testified in both trials making many identical pronouncements about how shaking had to be the principal explanation for the child’s brain condition,” said Roberson’s attorney, Gretchen Sims Sween, who has been fighting tirelessly to save her client’s life. “The flaws in the expert testimony are nearly identical.” 

Nevertheless, the Court of Criminal Appeals refused to reconsider its ruling against Roberson in light of Roark’s case. Unless the Texas Board of Pardons and Paroles and Gov. Greg Abbott intervene to offer him clemency, Roberson will this week become the first person in the U.S. executed based on the debunked diagnosis of shaken baby syndrome.

Angel of the Innocent

Nikki was unconscious and her lips were blue when her father Robert Roberson found her in bed the morning of January 31, 2002. 

The 2-year-old had been ill the previous week: coughing, vomiting, and running a high fever. Roberson had taken her to the doctor twice and both times was sent home with drugs that, today, would not be prescribed for children her age. The night before Roberson found his daughter unconscious, Nikki had fallen out of bed; he’d comforted her and everything seemed fine. Now, she was unresponsive. Roberson rushed Nikki to the local hospital in Palestine, Texas. 

Although medical personnel were able to restart Nikki’s heart, she was already brain dead. They found one lump on the back of her head and took scans of her head, but found no signs of abuse. Nonetheless, they decided that Roberson was acting odd; he wasn’t as emotional as they believed a father should be given his daughter’s grave condition. They immediately called the police. Upon his arrival, Palestine Police Department Detective Brian Wharton also noted that Roberson was stoic and detached. 

Before an autopsy had even been performed, Roberson was arrested and charged with killing Nikki.

Nikki was transferred to Children’s Medical Center in Dallas, where she was examined by Squires. A renowned pediatrician known for pioneering treatment of children with AIDS, she had more recently turned her attention to cases of child abuse. A few years earlier, in a Christmas Eve feature, the Fort Worth Star-Telegram had spotlighted Squires as one of the community’s “angels,” naming her “Angel of the Innocent.” Squires quickly concluded that Nikki had been a victim of shaken baby syndrome. “There was some flinging or shaking component, which resulted in subdural hemorrhaging and diffuse brain injury,” Squires told police, along with an “impact” area on the back of Nikki’s head, which she declared was not related to the child’s fall from bed. Before an autopsy had even been performed, Roberson was arrested and charged with killing Nikki.

The following year, he was convicted and sentenced to death based largely on Squires’s claims, which were even accepted by Roberson’s defense lawyer, who said that Nikki had been killed due to violent shaking, which occurs when an adult loses control of their emotions. “It’s a bad thing,” the lawyer told the jury, “but it’s not something that rises to the level of capital murder.”

Roberson insisted he was innocent. In 2016, he challenged his conviction under Texas’s junk science law. He was a week away from execution when the Texas Court of Criminal Appeals sent his case back to a trial court. During a nine-day evidentiary hearing, Roberson’s lawyers argued that SBS had been debunked and presented new evidence that undermined the state’s insistence that a crime had even occurred. A neuropsychologist who evaluated Roberson diagnosed him with autism and testified that the perception of his behavior as inappropriate by police officers and others was a misunderstanding of his neurodivergence. 

Perhaps most important, Roberson’s lawyers presented crucial evidence that offered alternate explanations for Nikki’s death. Medical experts testified that Nikki was seriously ill with undiagnosed pneumonia and that the drugs she’d been previously prescribed had likely made her condition worse. And, in contrast to Squires’s insistence that Nikki’s head injury could only have been caused by a violent act, medical experts at the hearing said the evidence was consistent with Nikki having fallen off the bed, just as Roberson had described.

Notably, the prosecutor didn’t call Squires to testify at the hearing, claiming the doctor could not be located. 

We Were Wrong

Given all the similarities between the Roark and Roberson cases, it is hard to square their sharply different outcomes before the courts. Yet there are notable differences: The Dallas County District Attorney’s Office agreed that Roark’s case deserved a second look, while prosecutors in more rural Anderson County have stuck by Roberson’s conviction. And in Roark’s case, Squires conceded in an affidavit that a relatively minor portion of her testimony was inaccurate, but stood behind the broader SBS diagnosis. When Roberson’s attorneys reached out to Squires, she never responded. 

Nevertheless, it remains true that the Court of Criminal Appeals has signed off on Roberson’s execution even though it featured the same flawed forensic testimony the court said required a new trial for Roark. This has happened before. 

Cameron Todd Willingham and Ernest Willis were convicted of strikingly similar arson crimes based on the same flawed fire science. In 2004, Texas executed Willingham; Willis was exonerated later that year.

The Willingham execution sparked outrage and pushed Texas to confront the problem of wrongful convictions and flawed forensics, helping to lay the groundwork for the passage in 2013 of the state’s junk science law. The law was meant to prevent miscarriages of justice, but in the most high-stakes cases, like Roberson’s, it has not worked as intended. According to a recent report from the Texas Defender Service, no one on death row has ever successfully challenged their conviction under the junk science law. 

Two decades after Texas executed an innocent man based on junk science, it is on the verge of doing so again. Though the Texas Board of Pardons and Paroles and Gov. Greg Abbott can act to spare Roberson’s life, there’s little reason to think they will.

Under Texas law, the governor needs a recommendation from the board in order to grant clemency; without the board’s recommendation, the governor is only empowered to issue a one-time, 30-day reprieve. State law does not require that the board grant Roberson a hearing or even that it discuss his application for clemency. Historically, board members have not met to discuss clemency for people on death row and instead members have merely faxed in their individual decisions. Under Abbott, just a single person on death row has had their sentence commuted. 

In asking the board and Abbott for mercy, Roberson has assembled an impressive clemency petition that includes letters of support from medical professionals, families who have been erroneously accused of child abuse, and a bipartisan group of Texas lawmakers, some of whom have traveled to death row to pray with Roberson. 

Also asking for the state to spare Roberson is Wharton, the former Palestine detective who investigated Nikki’s death. Now a Methodist preacher, he has been vocal about his regret over the role he played in sending Roberson to death row. In a letter to the board, he wrote that he was never comfortable with Roberson’s conviction and hoped for years that the courts would intervene. 

“We, the State of Texas, are now working only to protect our capital system and a conviction,” Wharton wrote. “We have failed to hear Robert’s righteous plea of innocence. We rushed to judgment. We were wrong, the jury was misinformed, and Robert is not guilty of any crime.” 

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It was a tip that brought a dog to the main post office in downtown Jackson, Mississippi. An employee there had reported seeing someone in the lobby putting pills into hot pink envelopes.

Hours later, Ed Steed, a police officer from the small city of Richland, just south of Jackson, walked into a back room at the post office where one of the envelopes had been set aside. Steed, a K-9 handler, arrived with Rip, his narcotics sniffer dog. Rip strode around and, when he got to the pink envelope, sat down. According to records obtained through a Freedom of Information Act request, Steed said this meant the dog had smelled narcotics. That claim became evidence to get a warrant to open the envelope.

This, though, was no ordinary drug bust. As it turned out, there were pills inside the package, but they were not the kind that Rip or other police K-9s are trained to detect. The envelope contained five pills labeled “AntiPreg Kit.” They were made in India, and their medical purpose is to induce abortion. Dwayne Martin, at the time the head of the U.S. Postal Inspection Service in Jackson, told me this was exactly what the initial tipster had suspected.

As it turned out, there were pills inside the package, but they were not the kind that Rip or other police K-9s are trained to detect.

About two-thirds of abortions in the U.S. in 2023 were done with mifepristone and misoprostol, the two-pill combination found in AntiPreg and similar products. Most were prescribed by clinicians at brick-and-mortar offices or through telehealth appointments. The World Health Organization advises that the pills are so safe in the first 12 weeks of pregnancy that supervision by a medical clinician is not needed. Taking the pills without clinician oversight is called “self-managed abortion.”

The practice has become so widespread that the New York Times estimated last year that it comprised 10 percent of all abortions being done in America. The U.S. Food and Drug Administration, however, has not approved the importation of foreign-made misoprostol or mifepristone pills, much less their distribution without a prescription. 

The non-approved pills tend to enter the U.S. in bulk, most passing surreptitiously through customs at land borders and international airports. Many are delivered to feminist-oriented mutual aid groups who distribute them at low cost or for free. Others go to people who are just trying to turn a profit. Both groups repackage their international bulk shipments as single doses and mail them domestically — typically from post offices.

Today, you can order AntiPreg and similar brands by clicking links at websites including that of Plan C, an online clearinghouse for information about how to get abortion pills through the mail. One dose costs as little as $38, including shipping, and can be cheaper if the patient seeks financial assistance. The pills can be delivered in as quickly as four days.

In large part thanks to such easy availability, more people in the U.S. today are having abortions than before the fall of Roe.

What will happen to abortion-pills-by-mail and the people who use them if Donald Trump is elected in November? As the accounts of the regional USPIS head and FOIA documents show, a piecemeal crackdown is already underway during a Democratic administration. Under a Trump regime, things might go much further.

Whoever is in power, the incident in Jackson provides a potential window into the future — one in which freelancing local Postal Service employees and officials can call on local cops to halt women from accessing reproductive care and potentially charge and arrest those providing or using abortion medication.

My FOIA request asked for records from past years of investigations of people who’d used the mail to send pills. The documents I got back show how a willing administration might go after distributors. The feds could even lend support to police in states that have criminalized abortion care as they pursue cases under local laws. Pregnant people who order the medications could get caught in the dragnet.

The documents I received after my FOIA request are highly redacted but still reveal many details about a federal investigation that began less than two years ago in Mississippi. Dozens of envelopes with abortion pills were seized. The bust followed on the heels of the Supreme Court overturning Roe v. Wade, and came after a group of anti-abortion doctors filed a federal lawsuit in Texas, arguing that abortion pills should be banned from the mail.

The Jackson investigation apparently also employed what’s called a mail cover: a little-known Postal Service method for collecting data about people suspected of committing crimes. Using an enormous database of images of the outside of envelopes and packages, postal inspectors can digitally compare names, addresses, and other information on one item to others. And the findings can be freely shared with almost any law enforcement agency that requests them. The return address for the hot pink envelope in Jackson included an unused post office box number, the sort of information postal inspectors can use to correlate parcels to each other.

Reproductive justice activist Laurie Bertram Roberts worries about an anti-abortion regime taking power. They direct the Jackson-based Mississippi Reproductive Freedom Fund, which assists fellow Mississippians with any reproductive decision they make, from having a baby, to leaving the state to go to an abortion clinic, to using pills at home.

In a state where abortion is strictly banned post-Roe, Bertram Roberts is also a doula. Along with other doulas, they have organized help for people at the end of their pregnancies, including those which do not come to term. Whether that end is due miscarriage or to abortion is immaterial. “We don’t ask,” they said.

The pink-envelope investigation came out of a sort of collaboration between the feds’ regional offices and a local official: U.S postal workers and a city K-9 cop. Though no one in Mississippi has yet been arrested for helping carry out an abortion, Bertram Roberts fears that synergy. They leaned forward and tensed their lips as I opened my computer and pulled up images I’d obtained from the FOIA request: photos the USPIS had taken, in a post office parking lot, of vehicles suspected of belonging to the person who mailed the pills. 

Bertram Roberts peered anxiously at the screen. “I don’t recognize them!” they said. Their face relaxed, but they shook their head. “The thing I worry about most is people getting criminalized.”

The USPIS is the investigative arm of the nation’s Postal Service. The agency has known for at least the past decade, according to FOIA documents, that foreign-made abortion pills are entering the U.S. and being distributed in quantity without prescription. FDA regulations hold that this is illegal; the senders can be punished with criminal penalties.

Days after Roe was overturned in June 2022, the USPIS announced that it would not proactively pursue pill mailers, even in states where abortion was being banned.

“We enforce federal law,” USPIS spokesperson Michael Martel told me. “We have no interest in enforcing state laws.”

He said, however, that the USPIS does go after people who import nonapproved pharmaceuticals and those without medical credentials who mail prescription drugs.

The investigations can rely on outside help. USPIS doesn’t have its own sniffer K-9s, so it employs local police dogs and their handlers to check the mail for contraband and provide the probable cause needed to get warrants. The arrangement occurs even in jurisdictions like Mississippi, where abortion is now banned under state law and local cops enforce state law. Steed, the dog handler from a nearby Rankin County police department who responded to the pink envelope in Jackson, was recently deputized as a USPIS investigator, and he uses office space in the agency’s regional headquarters at the Jackson postal center.

Using local dogs creates risk for abortion-seekers. With the post office inviting local law enforcement to assist with federal investigations, local police could theoretically do their own investigations, by copying names and addresses from the mail. And they could pass that information to anti-abortion district attorneys. 

Police dogs, however, are trained to smell only the illegal drugs heroin, marijuana, ecstasy, fentanyl, and cocaine, not the ingredients in abortion pills, which currently remain legal. And the K-9s’ forensic reliability is suspect.

Why would a police dog alert on abortion pills in the first place, when they’re not narcotics?

Martel, the USPIS national spokesperson, speculated that the pills found in Jackson were contaminated in the manufacturing process by trace amounts of a drug such as marijuana, or perhaps someone was handling narcotics when they did the packing and left molecules behind that only canines’ super-sensitive noses can detect.

Theories along these lines are widespread among police, and they’re inherently impossible to disprove. Elisa Wells, a co-founder and co-director of Plan C, is skeptical. She said her group has conducted laboratory analyses of various brands of foreign-made abortion pills. They’ve all been pure, she said, and no one has ever complained about their containing narcotics.

There is another reason why a K-9 can zero in on a package that’s devoid of illicit drugs. Animal researchers call it “cueing.” Canines are exquisitely sensitive to the minutiae of a human’s posture, eye movements, and other subtle behaviors. Handlers wishing to develop probable cause to do intrusive searches for narcotics can coax their dogs into drug-alerting behavior. To get a reward, the dog will alert, even if nothing illegal is present. (Steed, the K-9 handler, declined to be interviewed for this story.)

Cueing can be deliberate, but it’s more often unconscious. In 2011, Lisa Lit, a researcher at the University of California, Davis, published a now-famous study in which she told the handlers of several police dogs that their K-9s would be searching for “target scents” hidden randomly in several containers. She put red tape on some containers and said it marked the targets. In reality, none of the containers had scents. Even so, most of the dogs alerted on containers, especially those with red tape.

Some policing agencies now require K-9 handlers to wear body cameras to check if they’re cueing their dogs. USPIS, though, doesn’t use body cameras, according to Martin, the former head of the office in Jackson. Chris Picou, a supervising deputy for Rankin County’s drug interdiction units who oversees many Central Mississippi police K-9s, including Steed’s dog Rip, told me in June that he had never heard of the Lit study about cueing.

Lawrence Myers, a retired professor of veterinary medicine at Auburn University with extensive experience researching the reliability of law enforcement dogs and their human handlers, said unacknowledged handler errors in the service of law enforcement can turn K-9s into mere “warrants on a leash.”

Once a warrant is issued and the parcel has been opened, a mail cover can help an investigation barrel forward.

Mail covers have been offered for generations by the U.S. Postal Service. They require neither a warrant nor any other Fourth Amendment control. Even so, they allow law enforcement agencies, from the FBI to local police to the USPIS itself, to collect information from the outside of an envelope or package. Annually, the post office photographs every one of the billions of pieces of mail that it processes. And every year, it approves thousands of requests from law enforcement for mail covers of individuals.

“We tend to think of first-class mail as relatively inviolable. But the outside of the envelope is the equivalent of social media,” said Frederick Lane, an attorney and writer who specializes in tensions between the Fourth Amendment’s guarantee of privacy and cybertechnology’s growing ability to snoop.

Lane, who is writing a book called “The Cybertraps of Choice: Pregnancy and Privacy in a Post-Roe World,” has investigated mail covers. He examined the abortion materials from the Mississippi FOIA request and said they constitute strong evidence that the USPIS got a mail cover from the Postal Service to enlarge its abortion pill investigation. (Martel, the USPIS spokesperson, declined to comment, saying only that the agency routinely withholds information from the public in order to protect its investigations.)

Lane said that using K-9s to alert for narcotics is one of the most common ways that the USPIS obtains warrants to search inside of mailed items, even when investigators don’t really believe they’re looking for narcotics.

Once the inspector got inside of the pink envelope in Jackson, he said, it appears that the USPIS collected data from outside the envelope — likely the unused post office box number in the return address — to locate additional envelopes with pills. The tactic would allow authorities to centralize the search by tracking related materials from disparate post offices as they come together at the Jackson distribution center.

Lane noted the Postal Service started photographing mail and digitizing it years ago to reduce the cost of sorting. After 9/11, and with the development of ever more sophisticated digital photography, the data recovered from one item could be compared with myriad other items and stored on ever-growing databases. These days, the ability to do this work “is growing by leaps and bounds,” Lane said.

“If you start involving local law enforcement in a state that is trying to ban access to abortion, including abortion medication, you are putting patients at risk.”

The information a mail cover extracts is handed over to law enforcement, with virtually no questions asked.

“Mechanisms for the post office helping local cops are in place without any supervision,” Lane said. He called the cooperation between policing agencies and the postal service “a candy store for law enforcement.”

That teamwork potentially threatens abortion rights, according to Nathan Freed Wessler, deputy director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project.

“If you start involving local law enforcement in a state that is trying to ban access to abortion, including abortion medication, you are putting patients at risk,” he told me. “Individuals who are trying to access medical care should not have to fear the federal government coming after them. The specter of harm to people once local law enforcement gets wind of it in a hostile state could be really serious.”

The other potential federal threat to abortion rights is what’s colloquially called the Comstock Act. Passed by Congress in 1873, it has been dormant for decades but remains on the books as 18 U.S. Codes 1461 and 1462. Comstock criminalizes importing and mailing materials which, according to the language of the law, are “intended for producing abortion, or for any indecent or immoral use.”

Among hard-line anti-abortion activists who have Trump’s ear, plans are already afoot to revive the Comstock Act if he wins. Lately, Trump and his vice presidential running mate, Sen. JD Vance, R-Ohio, have been trying to distance themselves from unpopular calls to further restrict abortion. Vance recently said he supports abortion pills being legal, but before entering the race, he was publicly in favor of banning them from the mail.

Vance and other Republican lawmakers last year sent a letter to the Department of Justice asking for the Comstock Act to be enforced and for the department to “shut down all mail-order abortion operations.” In addition, Project 2025, the Heritage Foundation blueprint for turning the country sharply right, calls for using the Comstock Act to ban abortion pills from the mail. Trump and his campaign have also been trying to distance themselves from Project 2025, but Vance complicates matters; he wrote the foreword to a now-delayed book by Heritage chief and project architect Kevin Roberts.

Because the Comstock Act is federal law and the U.S. Postal Service is part of the executive branch, Trump, if he won the upcoming election, could issue an executive order reviving Comstock as early as the first day of his second term. Separately, his attorney general could authorize going after pills in the mail.

“I have absolutely no doubt that under a Trump administration the Postal Service would be required to enforce the Comstock laws against misoprostol and mifepristone.”

“I have absolutely no doubt that under a Trump administration the Postal Service would be required to enforce the Comstock laws against misoprostol and mifepristone,” said Lane, the cyber-privacy expert. 

And if Comstock is revived, anyone caught sending abortion pills, even domestically produced brands not currently banned by the FDA, could be charged with a felony. With the pills officially defined as contraband, sniffer dogs could be trained to smell them on their own. Cueing by a handler would no longer be necessary. 

And the government might not stop with banning pills. Andrew Beck, a senior staff attorney with the ACLU’s Reproductive Freedom Project, told me that, under Comstock, even clinicians doing surgical abortions in states where they are legal could be cut off from receiving the items they need: “gloves, surgical instruments, and everything else that’s used.”

Comstock could ban them all from being mailed.

Rip, the local police department dog, sniffed the pink envelope in Jackson on December 7, 2022. That same day, even before the USPIS got its warrant to look inside the envelope, the agency impounded 11 more nearly identical packages with the same address that the Postal Service had determined was bogus. The fact that they were impounded so early is evidence, Lane said, that the USPIS was using a mail cover.

December progressed and additional envelopes were seized every few days. They were addressed to recipients throughout the country. The USPIS claimed they were being flagged by employees at a smaller postal service branch in Jackson called LaFleur, but more likely they were identified through a mail cover, according to Lane, then seized when they reached the downtown distribution and processing center.

USPIS said that workers at LaFleur had acted as tipsters. LaFleur branch manager Fenton Stevens, however, told me that he had no recollection of workers reporting envelopes suspected of containing abortion pills.

“How could somebody know if abortion pills are in a package?” he asked, incredulously. “That’s not something we do. We don’t indulge in things like that.”

The USPIS also photographed vehicles presumably driven by the person doing the mailing — the photos Laurie Bertram Roberts later checked out. The case was eventually sent to the federal prosecutor’s office for the Southern District of Mississippi, in downtown Jackson. An assistant U.S. attorney was assigned to handle it.

By December 20, over seven dozen envelopes had been seized. Then, two days before Christmas, the Office of Legal Counsel for the Department of Justice issued an opinion implying physicians and other clinicians who mail prescription abortion pills into states where abortion is illegal could not be prosecuted under the Comstock Act.

The Justice Department’s reasoning was that the pills are used for several medical purposes besides abortion, to manage miscarriages, for instance. Thus, the government cannot know in any given case whether a mailer’s intention is to break the law. (The opinion still leaves mutual aid activists and other non-clinicians susceptible to being charged with crimes.)

In Jackson, a few more envelopes, the final seven, were impounded on January 6. That date marked one month since Rip had sniffed the first pink envelope and the USPIS initiated its investigation. A mail cover is permitted to last for one month before it must either be renewed or ended. After that final day, seizures of pills in Jackson ceased.

No one has since been indicted, and Martel, the USPIS spokesperson, declined to say if the case is still open.

Martin, the retired inspector, said it’s closed.

“The U.S. attorney’s office in Jackson is a very good office,” he said, “very aggressive.” But he guessed that “the political climate,” as he put it, made a prosecution for abortion pills “a hot topic nobody wanted to touch.” 

Nobody, that is, under the pro-abortion-rights Biden administration. In the meantime, thanks to a Jackson-based postal worker, Rip the dog, and a federal agency that says it has no desire to police abortion, nearly 100 pregnant people did not receive little pink packages containing the medicine they requested.

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At the U.S. Supreme Court on Wednesday morning, the only thing Chief Justice John Roberts seemed to want to know was whether Richard Glossip would have been convicted and sent to death row if the jury had known that the star witness against him lied on the stand. 

“Do you really think it would make that much difference to the jury?” Roberts asked Seth Waxman, a former U.S. solicitor general who was representing Glossip before the court.

That question was at the heart of nearly two hours of oral arguments in Glossip v. Oklahoma, in which the court is being asked by both Glossip’s attorneys and Oklahoma Attorney General Gentner Drummond to overturn Glossip’s conviction and send the case back to Oklahoma City for a new trial.

Drummond — a conservative Republican who has defended Oklahoma’s death penalty and pushed to carry out seven executions since taking office — has fought to spare Glossip’s life, arguing that the false testimony played a key role in sending Glossip to death row and therefore his conviction cannot stand.

At Glossip’s 2004 trial, the state’s star witness Justin Sneed, who claimed Glossip coerced him into bludgeoning a man to death, testified that while locked up in the county jail he’d been given lithium to treat a cold, but “I never seen no psychiatrist or anything.”

In fact, Sneed had been seen by a psychiatrist who prescribed the powerful mood stabilizer to treat his bipolar disorder. Sneed’s lie, about the reason he was prescribed lithium, and the trial prosecutor’s failure to correct it, violated Glossip’s constitutional rights.

With the state and Glossip’s lawyers in agreement, the Supreme Court appointed an outside lawyer, Christopher Michel — a former law clerk to both Roberts and Justice Brett Kavanaugh when he was a jurist on the U.S. Court of Appeals for the D.C. Circuit — to argue in favor of upholding Glossip’s conviction. Michel rejected the idea that Sneed’s testimony was false, but even if it was, he argued, it was a lie that would not have made any difference to the jury at Glossip’s trial.

“False is false,” Justice Elena Kagan interjected. “The critical question that a jury is asking is, ‘Do I believe this guy and everything he says, and particularly, do I believe him when he points the finger at the accused?’”

Sneed’s lie might’ve made a difference in some other case, Michel said, one where “the witness is presumed to be credible.” But Sneed was not. “In this case, the witness admitted that he beat a man to death with a baseball bat. The witness admitted that he was testifying in exchange for avoiding the death penalty. The jury already had significant credibility questions about Justin Sneed.”

“I have to say, I find that an odd argument, Mr. Michel,” Kagan replied. “It’s like, ‘This witness was so not credible anyway that we don’t have to consider any further lies that he tells’?”

Kagan was not alone in this concern. Kavanaugh told Michel he “was having some trouble” with his argument about Sneed. “The whole case depended on his credibility.” But Kavanaugh was also open to the possibility that the court had no business reviewing the question of Sneed’s testimony in the first place. The justices took Glossip’s case after the Oklahoma Court of Criminal Appeals rejected Drummond’s request to overturn his conviction; in reviewing the case, the justices assigned themselves an additional question to decide: whether the state court’s decision was rooted in an “independent and adequate state-law ground” and should thus be allowed to stand.

If that happens, the court would effectively be green-lighting Glossip’s execution.

Confession of Error

Richard Glossip was twice convicted and sentenced to die for the 1997 murder of Barry Van Treese, inside a motel Van Treese owned on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s live-in manager, to the crime. The case against Glossip was based almost entirely on the testimony of 19-year-old Justin Sneed, who did maintenance work at the motel. Sneed admitted killing Van Treese inside Room 102, but claimed Glossip put him up to it. In exchange for his testimony, Sneed escaped the death penalty and was sentenced to life without parole. 

Glossip has maintained his innocence in the face of nine execution dates. In the meantime, evidence of his wrongful conviction has continued to mount. An exhaustive series of investigative reports by the law firm Reed Smith unearthed explosive new evidence, including a letter written by Sneed to his public defender asking if he might be able to recant his testimony. And a number of new witnesses have come forward to dispute the prosecution’s characterization of Sneed as a gullible follower who acted under Glossip’s control. They instead described Sneed as violent and often volatile as a result of chronic illegal drug use.

The Oklahoma Court of Criminal Appeals has repeatedly dismissed these revelations and has refused to grant Glossip’s lawyers an evidentiary hearing. In 2023, after commissioning his own independent investigation, Drummond took the unprecedented step of asking the court to vacate Glossip’s conviction. In a motion to the court, he made what’s known as a confession of error, a move that is rare — and in this case signals that the top law enforcement officer in the state has lost all faith in the conviction. Nonetheless, the court refused Drummond’s request.

At the heart of Drummond’s effort — and key to the current dispute before the Supreme Court — are handwritten notes that prosecutors previously failed to disclose to Glossip’s defense. The notes come from a meeting between Sneed and prosecutor Connie Smothermon that took place not long before Glossip’s 2004 retrial. Smothermon wrote the name of a doctor — “Dr. Trumpet?” — and a reference to lithium — “on lithium?”

To Glossip’s attorneys and Drummond, the name was an obvious reference to Lawrence Trombka, the lone psychiatrist working in the county jail at the time Sneed was incarcerated there, who would have been the only person authorized to treat Sneed. The notes made clear that Sneed had, at best, misrepresented the situation under oath. When he testified that he hadn’t seen a psychiatrist, Smothermon not only failed to correct the testimony, but instead doubled down. “So you don’t know why they gave that to you?” she asked.

“No,” Sneed replied. 

During oral arguments, Justice Clarence Thomas was solely preoccupied with the allegations against the prosecutors — not because their actions may have tainted Glossip’s trial but because their reputations were being “impugned.” He seemed less concerned with Smothermon’s shifting explanations for the notes, including an absurd claim that the reference to “Dr. Trumpet” was just a personal note-to-self about a jazz musician.

Instead, Thomas fixated on Smothermon’s insistence that she was never given an adequate chance to defend herself against the allegations of misconduct. That claim was made in a friend-of-the-court brief filed on behalf of the Van Treese family, who is angry Drummond is not defending Glossip’s conviction, but it is not part of the official court record that the Supreme Court is supposed to be relying on. Both Waxman and Paul Clement, also a former U.S. solicitor general and who was representing Drummond, reminded Thomas that Smothermon’s allegations come in an “unsworn” affidavit, which, Waxman noted, was “appended at the last very minute for the very first time” in the case.

Justice Samuel Alito sat through most of the oral arguments with his eyes closed, his head resting on his left hand, as if he was sleeping, a posture that seemed designed to signal disinterest if not utter disdain for the entire case. To him, it seemed certain that the Oklahoma court’s decision was grounded in state law that barred any further appeals of Glossip’s conviction. This should be the last word, Alito said, which he found “clear” and “unambiguous.” 

But to several of his colleagues, the Oklahoma court’s decision was a mess: invoking a confusing mix of state and federal law to justify a decision that would force the state to execute Glossip. Kagan was especially critical of the court’s opinion, which she likened to “throwing everything in the kitchen sink.” 

“Justice Kagan, you’ve issued a strong legal writing critique of this opinion,” Michel said. 

“I haven’t even started,” she replied.

Justice Ketanji Brown Jackson repeatedly asked why the court should not send the case back to Oklahoma for an evidentiary hearing. “I guess I don’t understand why we wouldn’t, at the minimum, have some sort of requirement that a court make a finding about these things?”

“It seems like there’s some pretty significant factual questions that have been debated. What did counsel know? What do these notes, markings mean?” she asked. “Was Sneed’s statement that he never saw a psychiatrist true or false?”

Whether there is an appetite for Jackson’s seeming compromise is unclear. The court is hearing the case with just eight justices. Justice Neil Gorsuch, who considered one of Glossip’s previous appeals while sitting on the 10th U.S. Circuit Court of Appeals, has recused himself from the case. If the Supreme Court were to deadlock with a 4-4 ruling in the current case, the Oklahoma Court of Criminal Appeals ruling would stand.

A Killer Court

With the arguments underway, a lone protester stood in front of the barricades that had been set up in front of the court’s marble staircase. She brought a huge spray-painted banner that read “Supreme Coup of the United States” and a rolling display of flags and homemade signs warning of the dangers of Project 2025. A speaker blared a “Schoolhouse Rock”-inspired song laying out the project’s agenda and urging people to vote. 

One of the signs read “Project 2025 Will Increase the Death Penalty.” She was acutely aware of what was happening in the courtroom. “Six Catholics who took away our right to bodily autonomy, allowed Marcellus Williams to die,” she said. She saw Williams’s case, in which a Missouri prosecutor sought to do the same thing Drummond has tried to do — overturn a conviction tainted by prosecutorial misconduct — as part of the continued radicalization of the Supreme Court. 

Alito has become the poster child of the court’s authoritarian creep. He has sought to push through executions no matter what, including in cases where there are significant questions of innocence. It was Alito who wrote the opinion the last time Glossip came before the court, as the named plaintiff in a challenge to Oklahoma’s lethal injection protocol. Despite evidence that the state’s chosen drug combination posed a risk of torturing prisoners to death, Alito reasoned that “because capital punishment is constitutional, there must be a constitutional means of carrying it out.” That decision gave way to Oklahoma’s disastrous attempt to kill Glossip in 2015, which was only called off at the last minute when officials realized they were about to use the wrong drug.

Almost a decade later, Don Knight, Glossip’s longtime attorney, was nonetheless cautiously optimistic after the oral arguments. “We were really gratified that the Supreme Court would give us the opportunity to present this case,” Knight said. “We believe in the concept of a fair trial for everyone in this country. And we certainly believe Mr. Glossip has the right to a fair trial, and we hope the court goes ahead and gives him a new, fair trial.”

The post The Supreme Court May Force Oklahoma to Kill Richard Glossip appeared first on The Intercept.

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Several county jails along Florida’s coast within the path of Hurricane Milton are choosing not to evacuate hundreds of incarcerated individuals as the storm makes landfall on Wednesday. 

Milton, which threatens to be among the most destructive storms in a century, is expected to bring storm surges as high as 15 feet and winds of 160 mph. Tampa Mayor Jane Castor likened a single-story house in the face of the storm to “a coffin.” President Joe Biden urged residents to leave, calling the evacuation “a matter of life and death.” 

Even so, at least three county jails in Florida that sit within mandatory evacuation areas have decided that detainees will ride out the storm. These jails — Pinellas, Manatee, and St. Johns counties — have a combined incarcerated population of more than 4,000 people. Recent analysis from The Appeal found that more than 21,000 people are locked up at facilities in areas with evacuation orders ahead of Milton. An earlier investigation by The Intercept found that across Florida, 52 jails, prisons and detention centers face major to extreme flood risks over the next 30 years as such climate-driven storms intensify, the most among any state.

Florida has among the largest populations of incarcerated people in the country, more than 84,000, according to federal data — exceeding the jailed populations of entire countries, such as France, Germany, Malaysia, or Venezuela. 

“With that number of inmates it’s not really possible, feasible to evacuate people out of there, and it’s unnecessary because we can go up,” said Pinellas County Sheriff Bob Gualtieri on Wednesday during a press conference. He said the Pinellas County Jail, which has a population of about 3,100 people, is prepared to move people from the first floor cells to the second floor in the event of flooding.

“We have plenty of staff there, everything’s safe, it’s under control and I’m not concerned about it,” he said, adding that around 800 deputies and jail staff would be on hand. The jail sits within an area deemed Zone A, the most severe tier among evacuation areas, and is located next to a waterway that spills into Tampa Bay.

Former FEMA head Craig Fugate told The Intercept it’s typical for prisons and jails to opt not to evacuate their facilities “unless absolutely necessary.” He said evacuation orders are meant for the public, adding that jails and prisons are often built to handle the force of hurricanes. 

“Evacuation of a correctional facility is a complex operation involving significant security, logistics, and staffing concerns,” said Fugate, who also directed Florida’s emergency management in 2004 when four major hurricanes made landfall in the state. “For many facilities, especially those constructed to withstand hurricanes, sheltering in place with additional preparations is the standard response.”

Also within Zone A is Manatee County Jail, which decided it will not evacuate its population of about 1,200 people. The jail sits just south of Tampa. During last month’s Hurricane Helene, neither Manatee nor Pinellas evacuated their jails, though Milton is expected to bring more severe weather.

“We’re hunkering down at the moment,” said Manatee County Sheriff’s Deputy Brandon Harvey. “You have those concerns as unpredictable as Mother Nature is, but we’re confident with what we’ve got here.”

A spokesperson for the Manatee County Sheriff’s Department said the facility is “hurricane-rated” and built on higher ground. The jail moved people with physical disabilities to the second floor ahead of the storm and is stocked with enough food and water for several days, the spokesperson said. 

“If it appears water will reach the ground floor, all inmates and staff will move upstairs,” the spokesperson said. “It’s designed to accommodate full population on the upper level in that scenario.” 

Harvey said the jail had been inundated with calls from concerned relatives whose loved ones are incarcerated, asking for an early release. An American Civil Liberties Union petition from 2022 estimated around 400 people were held at the jail due to inability to pay bond. 

On Florida’s east coast, St. Johns County Jail also does not plan to evacuate, despite an evacuation order issued for the entire county of more than 300,000 people. 

Some jails, however, were less confident in the resiliency of their facilities. Officials at Orient Road Jail, the largest in Tampa, transported their incarcerated population to Falkenburg Road Jail, which is not within a mandatory evacuation zone, said a spokesperson for the Hillsborough County Sheriff’s Office. 

On the state prison level, officials said they relocated 5,640 incarcerated people into facilities built to withstand storms. 

Denise Rock, executive director of prisoner advocacy nonprofit Florida Cares, said she was pleased with the state’s response to protect its incarcerated population ahead of Milton and during Helene. 

“But they have not been in past years,” she said.

Amid flooding in 2014 in northwest Florida, a basement at Escambia County Jail had flooded, causing dryers to float and disconnect from their natural gas lines, causing an explosion that killed two people and injured 184 others. 

Hurricane Michael in 2018 tore through the roof of Gulf Correctional Institution Annex, a Florida state prison, exposing nearly 3,000 people incarcerated there to the elements. No injuries were reported at the prison. Rock noted other facilities lacked food and water during that storm. 

Several years later, in 2022, Hurricane Ian had damaged and flooded one county jail near Fort Myers, while inmates at a nearby jail reported unsanitary living conditions and a lack of water rations. 

The Manatee jail had also faced criticism in the past for not evacuating people incarcerated there when threatened by disaster. In 2021, toxic waste leaking from a nearby reservoir threatened to flood the jail. Officials evacuated around 200 people, but three-quarters of the jail population remained, drawing ire from advocates, according to Southerly Magazine. 

Elsewhere, during Hurricane Helene, people incarcerated at a state prison in North Carolina were forced to sit in their cells for days with no light or running water, at times sleeping amid bags of their own feces. 

Rock said she remained concerned about the lack of communication between the state prison and the families of incarcerated people. She also worried that even if prisons were hardened to withstand winds, intense rain could lead to untenable living conditions inside. 

“Flooding is definitely a problem, ’cause many of these windows don’t close or have any screens or any protection from the elements,” she said, noting the small size of cells and cramped living conditions if inmates are forced to integrate with other facilities amid relocations. She said it’s common for some people to sleep on the floor throughout the storm due to lack of beds.

As of Wednesday afternoon, tropical storms and tornados began to rage along Florida’s coast. Milton was expected to make landfall by Wednesday night.

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Alan Miller had spent the six months leading up to his execution confined to his cell. Though Miller was never given an explanation for the heightened captivity, which had over the past few years become routine for people facing execution in Alabama, he used the time to conduct his own research on the state’s plan to kill him with nitrogen gas. 

A Discovery Channel program on scuba diving he’d watched made him especially worried about contracting decompression sickness, otherwise known as the bends. Though Miller’s eyes, nose, and mouth would be covered by a respirator mask, he feared that air would enter his ears and prolong his death — or worse, keep him alive but unable to function. To avoid that risk, he said he asked some prison guards whether he could put tissues in his ears to block them. The guards told him it was above their pay grade and to take it up with the people in charge.

Miller, 59, had been forced to consider the possibility that things could go wrong. Research on killing humans with nitrogen gas — by pumping it through a hose into an industrial respirator mask — was extremely limited, and state officials refused to disclose how they developed the novel method. Alabama is the first and only state to use nitrogen for executions, and had done so just once before. Witnesses described the man, Kenneth Smith, writhing in “seizure-like movements” for two minutes, despite state officials promising he’d lose consciousness “seconds” after the gas started flowing and die after about five minutes. Even the son of the victim was startled by what he saw, telling the New York Times that it conflicted with what state officials had told him to expect. “With all that struggling and jerking and trying to get off that table, more or less, it’s just something I don’t ever want to see again,” he said. Afterwards, Alabama officials offered to help other states adopt execution by nitrogen. 

Leading up to Smith’s execution, one doctor had warned there was a chance the method might not kill him and would inflict such significant brain damage that he’d be left in a vegetative state. 

Miller insisted he’d rather die. “I don’t want to be a vegetable,” Miller told me several times in a thick Southern drawl as we sat across from one another in the dilapidated visitation room at Holman Correctional Facility, a maximum security prison in Atmore that houses Alabama’s death row and execution chamber. 

Miller didn’t have anything to worry about, state lawyers had said. Smith, they wrote in court documents, reacted so violently because he held his breath.

Miller said he had no plans to fight his execution. All he asked was that the state hold up its end of the bargain and give him a quick and peaceful death. Over the summer, he’d agreed to a settlement with the state to help ensure that would happen. The terms were confidential. 

Miller had faced execution before, and survived. 

Almost exactly two years ago, he sat in the same visitation room with his family and lawyers and said what he thought would be his final goodbyes. But he left the execution chamber alive after his executioners failed to establish an IV line for lethal drugs, despite poking him all over his body and hoisting the gurney vertically into the air to suspend him for 20 minutes. He was one of six people in the U.S., and one of three people in Alabama, to survive their execution during the modern death penalty era.

“It’s like déjà vu,” Miller said as he waited again for the state to execute him. Four family members and two lawyers had come to visit. He told me he was irritated that the state was putting them through another execution, and hoped they’d do it right this time. 

His visitors reassured him that everything would be OK. Miller’s brother, who worked as an EMT and firefighter for decades, had plenty of experience wearing a respirator and also witnessing death. “You’ll be just fine,” he told Miller. We all nodded in agreement. 

I would join two of Miller’s lawyers, his brother, sister, and sister-in-law to witness the execution. As we exited the prison around 4:40 p.m., a message brightly painted on an overhang to “Have a great day!” seemed to taunt us. We then loaded ourselves into a white corrections van that took us to a trailer, where we waited for the execution to begin. There, we sat passing the time with inconsequential conversation. Halloween decorations, Taylor Swift, and lawn maintenance were brief distractions from the reality that we were about to watch Miller die. 

If, as the state had suggested, all that Miller needed to do for a quick and painless execution was to not fight it — to willingly breathe in the lethal gas — then Alabama’s second nitrogen execution should have gone smoothly. Instead, once the nitrogen started flowing, we watched from the witness room as Miller thrashed and jerked on the gurney, shaking and pulling at his restraints. On the other side of the glass, John Muench, Miller’s spiritual adviser, stood inside the execution chamber feet away from Miller as he gasped for air.

“We don’t see people jerking around like that while they’re dying normally.”

Muench, who is also a physician, told me he’d seen plenty of death but said Miller’s looked more anguished than most. “We don’t see people jerking around like that while they’re dying normally,” he said. “His face was twisted and he looked like he was suffering.”

In the years leading up to his execution, Miller was adamant: He didn’t remember committing the crimes that had landed him in this situation in the first place. 

Like the majority of people on death row, Miller endured years of childhood trauma. He also came from a family with a long history of mental illness, according to a 2013 appeal that contained a detailed account of his upbringing. Miller’s great-grandmother once tried to kill her children and was committed to Bryce Hospital, Alabama’s psychiatric facility. Her son, Miller’s grandfather, was admitted to Bryce five times for illnesses such as paranoid type schizophrenic reaction and manic depressive psychosis. Of his sons, three had a history of severe mental illness. One of Miller’s uncles was in prison for murder. 

Miller’s father, Ivan, suffered from paranoia, and always thought that people were plotting against him or trying to harm him — including his own wife, who he thought tried to poison him. Ivan also heaped physical and psychological abuse onto Miller, who he claimed was not his child and called “little red headed bastard.” Family members say that Ivan regularly hit Miller and threatened him with knives and guns, sometimes even shooting bullets into the floors. On one occasion, Miller’s father threatened to take him and his brother out to the woods and see if God would intervene before he killed them. 

Despite Ivan’s abuse, Miller grew up to be a rule-follower and a hard worker. He avoided drugs and alcohol and held several jobs. Ivan, however, still bullied his son, telling him that he wasn’t masculine and calling him gay. Then in July 1999, his family began to notice that something about Miller seemed off. They would later say that Miller, then 34, talked to himself and daydreamed more frequently. Around this time, he also started suffering from constant headaches and ringing in his ears. 

On August 5, 1999, Miller drove to work at Ferguson Enterprises, a plumbing and HVAC supply wholesaler, in Pelham, a small city just south of Birmingham. When Miller’s boss, Johnny Cobb, walked into the building, Miller was holding a pistol. “I am sick and tired of people telling rumors on me,” said Miller, according to Cobb, who Miller told to leave the building. When Cobb returned, he saw that two of his employees, Scott Yancy and Lee Holdbrooks, had been shot to death. 

Miller then drove to a previous job at Post Airgas and asked for Terry Jarvis. “Terry you’ve been spreading all kinds of rumors around about me,” Miller said before shooting Jarvis several times, killing him, according to David Adderhold, the store manager, who then pleaded with Miller to spare him. Miller obliged and instructed him to leave.

Police stopped Miller as he drove south on I-65 and arrested him without incident. His pistol, the murder weapon, sat on the passenger seat. When police subsequently interrogated him at the Pelham police station, Miller asked, “I’m being charged with something? … I don’t understand what you’re saying,” according to his appeal. He later said he thought his co-workers had started a rumor he was gay. 

There was no question that Miller had committed the murders.

Still, the state’s psychologist who evaluated Miller said that he had no memory of the shootings and there was a chance that he may have lost touch with reality and dissociated.

Despite this possibility, Miller’s court-appointed lawyers failed to mount a defense during his trial and did little to convince the jury to spare his life because he was mentally ill. Still, some jurors thought he should’ve been shown mercy. He was sentenced to death by a vote of 10–2. (Alabama and Florida are the only states that don’t require all jurors to agree to send someone to death row. Approximately 6 out of every 10 prisoners on death row in Alabama were sentenced to death by a split jury, according to a 2023 report by the NAACP Legal Defense and Educational Fund.)

Later, Miller’s appellate lawyers would argue that his death sentence was unconstitutional. They retained a psychologist who concluded that Miller suffered from PTSD with dissociative features, a common diagnosis for people who have experienced significant trauma. Like the state’s expert, she concluded that Miller was experiencing a dissociative episode at the time of the shooting. 

Even as he waited to be executed, Miller didn’t recall what he had done. After I sat down with him on the morning of his execution, I asked him what he wanted the world to know.

“I didn’t do anything to be in here,” he told me. “If the judicial system had done its job, I would not have been convicted.” 

He elaborated, quickly darting in and out of thoughts and names that were difficult to follow. I asked if he was referring to the shooting. Miller said he didn’t remember it.

During the rest of our conversation, Miller would at times cup his left ear toward me to signal that he was having trouble hearing. His ears had been ringing since he was a kid, which he thought was from his dad hitting him in the head. He’d devised his own methods for tuning it out, like playing video games on his tablet inside his cell. “I try to go blank,” he said.

Miller recounted returning to his cell after his first execution was called off. The other men on death row were eager to talk with him about what he had just experienced. 

“They asked me what it’s like. I told them you lay there and they stab you,” he recalled nonchalantly. Miller told me that after the failed execution, he just wanted to go to sleep. The experience was not as remarkable as it might have seemed, he said — his father had threatened him with death so often that he was used to it.

Miller’s brother Jeff Carr, who was sitting next to me in the visitation room, said he was stunned when he found out that Miller was in jail for three murders.

Jeff and his wife Sandra Carr later told me that they thought the death penalty was appropriate for certain people, but that Miller wasn’t one of them. They remembered seeing an unfamiliar look in his eyes after he was arrested, like he had snapped. “That was not the Alan we knew,” Sandra said. “What he told his mother was, ‘They said, I did this, but I don’t remember it.’”

About 90 minutes after we last saw Miller, prison guards dressed pristinely in sky blue and navy uniforms came to get us from the trailer where we’d been waiting for the execution to start. They led us single-file through a red door and down a cinder-block hallway affixed with a monitor that would alert us in the event of a nitrogen leak. A piece of black tape covered the manufacturer’s name — the state’s attempt to prevent us from knowing whose products were entwined with this new way of killing. We filed into the witness room along with media witnesses, staring ahead into a glass window covered by a curtain. A white license plate hung above the window, instructing us to “STAY SEATED AND QUIET.”

Minutes later, Brandon McKenzie, the prison guard who leads Alabama’s execution team, pulled the blue hospital curtain open, revealing Miller, who was lying strapped to the gurney and tightly enveloped in a white sheet. A blue-rimmed respirator mask covered Miller’s entire face, from his forehead down to his chin. A strip of black tape had also been placed to conceal the mask manufacturer’s name. A hose that ran from the wall behind Miller was connected to a valve on his right side. The setup looked cheap and improvised, like a scene from a low-budget horror movie. 

After Holman warden Terry Raybon read the execution warrant, McKenzie unscrewed the cap to another valve on the left side of Miller’s respirator. The witness room filled with the sound of hissing gas, making it difficult to hear Miller as Raybon held the microphone up to the mask for his last words. “I didn’t do anything to be in here,” Miller said. Some of his words were inaudible, but he mentioned someone not doing their job and asked his sister, Cheryl, to take care of his brother Richard. At one point, Raybon pulled the microphone away from Miller before he was finished talking and had to stick it up to his face again. 

Once Miller finished speaking, Raybon opened the door behind them and disappeared from the execution chamber. McKenzie, the captain of the execution team, remained in the room, checking the mask and feeling its seal around Miller’s face — a step that is supposed to determine whether the mask is tight enough to keep out oxygen. A pulse oximeter monitoring Miller’s oxygen levels was clipped to his ear. After some time, McKenzie then called Miller’s spiritual adviser over to the gurney, who laid one of his hands on Miller’s left leg. It’s unclear when the nitrogen gas started, but I saw Miller’s stomach rise and fall like he was breathing normally. It did not appear that he was attempting to hold his breath. For a second, it seemed as if he might die peacefully after all. 

Then suddenly, Miller started jerking and shaking, struggling against the restraints. While this was happening, he gasped for air and his eyes were open, staring at the ceiling and darting back and forth. This went on for about two minutes before Miller stopped moving. 

Then, for the next five or six minutes, Miller periodically gasped for breath. Some of the gasps were so large that his head lifted off the gurney. His left hand turned blue. 

At 6:32 p.m., about 15 minutes after the gas began to flow, a guard closed the curtain to the execution chamber. Minutes later, a guard unlocked the witness room and told us to exit. 

I again climbed into the van with Miller’s lawyers and family, and we were dropped off in front of Holman. Earlier, an employee told us not to loiter in the parking lot. He apparently meant what he’d said, watching us closely as we walked back to our cars. 

Afterwards, Alabama Department of Corrections Commissioner John Hamm gave a press conference. Asked about Miller’s violent reaction to the gas, Hamm assured reporters that everything had gone according to plan. “There’s going to be involuntary body movements as the body is depleted of oxygen. So that was nothing we did not expect,” he said. 

“If you’re going to sign somebody’s death warrant, you need to be there to witness it and see how it goes.”

Alabama Attorney General Steve Marshall gave a similar statement. “Tonight, despite misinformation campaigns by political activists, out-of-state lawyers, and biased media, the State proved once again that nitrogen hypoxia is both humane and effective,” he wrote. Notably, Marshall was not present for the execution. Still, he said it “progressed as planned. After Miller appeared to lose consciousness, his body took some agonal breaths and made slight movements associated with the dying process.”

I emailed my own observations to ADOC and asked whether the agency stood by these statements but did not receive a response.

About 10 days after the execution, Jeff and Sandra Carr, Miller’s brother and sister-in-law, told me the past week had been an emotional rollercoaster. They said they’d been trying to keep it together by sticking to their normal routines, like going to the gym at 5:30 most mornings, a regimen we’d discussed in the prison trailer while waiting to be taken to the execution chamber. 

Having made the eight-hour round trip drive from their home in north Alabama to Atmore two years ago when the state first attempted to execute Miller, they’d known some of what to expect in those final days with him. Jeff said he tried to be strong for his brother and compartmentalize his feelings, even as Miller was worried about them witnessing this next attempt at executing him. “He didn’t want us, I guess, having to watch what was fixing to happen. But you know, we were going to be there,” Jeff said. 

When we discussed what happened that night, Sandra told me that Gov. Kay Ivey and Marshall should have been there to observe the execution for themselves. “If you’re going to sign somebody’s death warrant, you need to be there to witness it and see how it goes,” she said. 

Sandra added, “Nobody should have to witness something like that.” 

I described what I saw to Gail Van Norman, an anesthesiology professor at the University of Washington. She told me that Miller’s reaction was “entirely predictable” and sounded consistent with the reactions of animals suffocated with nitrogen during scientific studies. 

“Yeah, he was awake,” she said. “The textbook says that when you do this to a mammal, they’re going to suffocate, they’re going to know it’s happening. They’re going to try to escape it. They’re going to struggle, they’re going to shake, they’re going to lose their coordination, and they’re going to die a horrible death.” That’s why, Van Norman explained, the American Veterinary Medical Association says that most mammals should not be euthanized with nitrogen. 

It didn’t matter that Miller wanted to cooperate, she said, because nobody actually knows if humans are capable of breathing deeply while being suffocated by nitrogen gas. “Even if they’re capable of it, and they do breathe deeply, I have no reason to believe that it will go any differently,” Van Norman told me. “You’ll still see the gasping, you’ll still see shaking, jerking, discoordination.” 

Miller’s reactions might have looked even worse if he weren’t bound to the gurney and was allowed to roam free, she said. “He’d probably be clawing at the doors and pounding at the windows, trying to get out but he can’t because they’ve tied him down to a gurney, so the only actions left to him are to jerk and grimace and lift his head up and try to do those things.”

Van Norman’s comments reminded me of how intensely Miller had flailed and pulled at his restraints, as if his body would have leapt from the gurney were it not strapped down.

Marshall’s assessment that Miller had lost consciousness had no scientific basis, Van Norman quipped. She explained that it would’ve been impossible for him to tell because new scientific research on consciousness has shown that there’s actually no way to determine whether someone is unconscious. “Somebody who says that is just saying it off the top of their head or out of wishful thinking, or because they haven’t read the literature,” she said.

Van Norman’s explanation defied everything legislators had promised about execution by nitrogen gas.

Van Norman’s explanation defied everything legislators had promised about execution by nitrogen gas. Alabama lawmakers adopted it as a method in 2018 amid national drug shortages and legal challenges over the constitutionality of the way it carried out lethal injections. State Sen. Trip Pittman, who had sponsored the nitrogen legislation, billed the method as “more humane.” (I sent Pittman, who is no longer in office, an email asking whether he stood by that statement following Miller’s execution, but he never answered.)

There was hardly any science to support the assertion. Former Oklahoma Rep. Mike Christian came up with the idea to execute prisoners with nitrogen after watching a BBC documentary called “How to Kill a Human Being,” which followed a British Parliament member turned journalist in his quest for the perfect execution method. “The process is quick and painless,” Christian told reporters in 2015. “It’s foolproof.” (Christian also did not answer my email asking whether he still believed that.) 

The method, which is scientifically known as nitrogen hypoxia, is supposed to starve the brain of oxygen by replacing it with nitrogen: a colorless, odorless gas that comprises 78 percent of Earth’s atmosphere but is deadly when inhaled on its own. Nitrogen poisoning has killed nearly 100 people since 1992 in accidents at industrial plants, laboratories, and medical facilities. 

Despite authorizing nitrogen hypoxia as an execution method, Oklahoma officials have said they will continue to carry out lethal injections and have no plans to pivot to nitrogen. Mississippi, which approved the method in 2017, has yet to use it either.

In Alabama, death row prisoners were given the option to choose whether they wanted to be executed by the gas over a 30-day period in 2018. But the prisoners and their lawyers say that the state did not make them aware of this choice until five days before the deadline and did not give them enough time to gather information about the method. 

Alabama has refused to publicly release details about how it created its protocol. Legal documents show that officials relied on state employees to test the method, but there’s no record of ADOC testing how a human would react to nitrogen flowing into the mask. The department instead conducted an experiment placing the mask on top of a sheet and towel and measuring oxygen levels. 

Even with limited testing, the state’s expert Dr. Joseph Antognini, a retired anesthesiologist who routinely testifies on behalf of states defending their execution methods, said in court that the system would render Kenneth Smith, the first man executed by nitrogen in January, unconscious within 30 to 40 seconds after the nitrogen began. Antognini did not return my request for comment about the discrepancy between his prediction and what witnesses saw during both nitrogen executions.

Other experts were much less optimistic. Dr. Philip Bickler, an anesthesiologist and director of the Hypoxia Lab at the University of California, San Francisco, said in a recent court filing that there is little scientific research on what happens when humans are forced to breathe in large volumes of nitrogen, but that quickly starving someone of oxygen is likely to cause a feeling of “impending doom.”

“Any form of execution by nitrogen hypoxia is cruel and inhumane.”

Bickler, who has conducted his own research on the effects of nitrogen hypoxia, submitted an affidavit for Miller’s lawyers as they argued that the nitrogen method violated his Eighth Amendment protections against cruel and unusual punishment. In it, he wrote that “any form of execution by nitrogen hypoxia is cruel and inhumane” and warned that Miller’s asthma “would likely prolong the death process.”

Despite these warnings, Marshall, the attorney general, has offered to help other states execute people with nitrogen gas. 

“To my colleagues across the country, many of which were watching last night, Alabama has done it,” Marshall said after Smith’s execution early this year. “And now so can you. And we stand ready to assist you in implementing this method in your states.”

Legislators in Ohio, Louisiana, and Nebraska took Marshall’s lead, introducing bills to authorize the method. In a letter to Nebraska Sen. Loren Lippincott, the sponsor of the state’s bill, Marshall championed the use of nitrogen to execute prisoners, calling media accounts of Smith’s execution “sensational.” Nitrogen, he told the Nebraska lawmaker, was not subject to the drug supply issues that made it difficult to carry out lethal injections and it would be more difficult to fight in court. “Adopting nitrogen hypoxia and allowing condemned killers to elect this method of execution will either expose their litigation games for what they have been, or it will provide them the humane death that they have claimed to be pursuing,” Marshall wrote.

Even with Marshall’s fervent support, the Nebraska bill did not make it out of committee. 

Meanwhile, Louisiana passed legislation authorizing nitrogen executions during a special session on criminal justice called by Gov. Jeff Landry a month after he took office. The state hasn’t killed a prisoner since 2010, but Landry has made it a priority to restart executions. Rep. Nicholas Muscarello, a Republican who drafted the bill, told me shortly after its passage that he was inspired by Alabama’s adoption of nitrogen executions. In the process of introducing his bill, Muscarello said he received a letter from Marshall that “basically supported the form of execution.” He initially agreed to share the letter but later said he was unable to find it.

Calling the death penalty a “tough issue,” Muscarello said he had done his own research on Smith’s execution by nitrogen asphyxiation but did not have an opinion on witness accounts. “I just looked at the legality of it and it was ruled constitutional,” he said. “I’m a lawyer, I wasn’t gonna get drawn into the emotional debate, I wanted to keep them focused on the legal debate.”

As Alabama officials plan to execute a third person, Carey Dale Grayson, by nitrogen in November, his lawyers have alleged that the method “carries an unacceptable risk of conscious suffocation” and violates the Constitution. They’ll argue their case in a federal hearing this week. 

Their expert, Dr. Brian McAlary, a Virginia anesthesiologist, reviewed Smith’s autopsy, which showed that his lungs were filled with fluid and blood when he died. The finding, he said, was consistent with the condition of someone’s lungs after they’ve been strangled or smothered with a plastic bag. In an affidavit, McAlary concluded that “the risk of undue agony attending this protocol is a medical certainty.”

Grayson’s lawyers had unsuccessfully asked to film Miller’s execution to settle questions over prisoners’ reactions to the gas. Marshall, the attorney general, said there was no need to do so because the media, the same group he called “biased,” would be there to provide an accounting. Hamm, the commissioner, opposed the request, stating that a recording “would severely undermine the solemnity of the occasion.”

Muench, the spiritual adviser and physician who stood next to Miller as he thrashed on the gurney, offered a solution: “I’m sure there’s video of people being waterboarded in this world and my guess is it would look very similar.”

ADOC wouldn’t let Muench join Miller inside the execution chamber until he signed a form acknowledging that he understood the risks of being in a confined space with nitrogen gas and would stand three feet away from the respirator mask after the execution began. 

When it came time to pray with Miller, a guard motioned for Muench to walk forward to the gurney. It was Muench’s understanding that he’d have five minutes with Miller before the gas started flowing. Muench read a psalm and laid a hand on Miller to comfort him. Then, as Muench was reading the second passage they’d agreed on, the Sermon on the Mount, Miller’s head jerked up. 

He said Miller was gray and ashen and his face was twisted.

“I knew suddenly this isn’t going like we planned.”

“I knew suddenly this isn’t going like we planned, and his knees started shaking at that point,” Muench recalled when we spoke after the execution. 

As Miller writhed on the gurney, Muench said it was obvious that the nitrogen gas had been turned on early. “I’m sure he was suffering certainly at the beginning of it, when he was gasping for oxygen,” Muench said. “When he lifted his head up and I could see him, he was definitely gasping.” 

He couldn’t see into the witness rooms on either side of him but saw into another room behind him where men and women dressed in suits and dresses sat. Presumably, they were state officials who had earlier piled out of a black sprinter van into the prison to watch the execution. 

Watching Miller shaking on the gurney, Muench wanted to intervene. “I didn’t feel like there would be anything possible that I could do, but I very much felt, when he started jerking, that we need — we should stop this at some point.”

The post “Agony” and “Suffering” as Alabama Experiments With Nitrogen Executions appeared first on The Intercept.

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