Alabama will not fatally inject Alan Miller, may use nitrogen hypoxia

MONTGOMERY, Alabama — Alabama has officially agreed not to attempt a second lethal injection on death row inmate Alan Eugene Miller, who survived the state’s first attempt at execution.

In a court filing filed Monday, attorneys for Miller and the state agreed that future attempts to execute Miller can only be done through nitrogen hypoxia, an as yet unused method for which Alabama does not yet have a protocol.

Gov. Kay Ivey recently asked the attorney general’s office not to schedule any executions until the state conducts a “holistic review” of its process, following two consecutive failed attempts and one execution marred by a long delay in setting up an IV line. Kenneth Smith last survived the state’s attempt to execute him on November 17.

Miller first sued several state officials in August, claiming that their plan to execute him by lethal injection on September 22 was unconstitutional because he chose to die of nitrogen hypoxia. He accused the state of losing an alternative method of execution form he had submitted during a mandatory 30-day window in June 2018. Witnesses on death row at Holman Correctional Facility described a frenzied rush when death row inmates were given just a few days to decide how they would die.