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.
NITROGEN HYPOXIA: Alabama’s plans for first-time execution for nitrogen hypoxia are near completion, attorney says
FAILED EXECUTION: Lawyers for the Alabama death row inmate say the “botched” execution caused pain and torture
US District Judge R. Austin Huffaker Jr. sided with Miller and issued an injunction against his execution by lethal injection. After a series of appeals, the US Supreme Court lifted the injunction on the day of his execution and confirmed his death by lethal injection.
But time was running out. Officials called off the execution minutes before midnight because members of the execution team were unable to get an IV line before Miller’s death sentence expired. Miller recounted the events of September 22 in a new lawsuit filed in court days later, alleging that staff members pricked and punctured his extremities for more than 90 minutes as he was strapped to the death chamber stretcher in Holman was. Miller claimed they stuck a needle in his foot deep enough to hit a nerve, causing his body to tremble in the gurney’s restraints.
Alabama acted quickly to get a second chance at execution for Miller, and Marshall filed a motion in the state Supreme Court on Oct. 4 to set Miller’s second execution date ahead of other death row inmates with pending execution dates.
Miller would have been the first person in US history to face a second execution by lethal injection. Only one person in America was executed after a failed attempt: 18-year-old Willie Francis in 1947.
Alabama first hinted at its plan not to give Miller a lethal injection on November 14, when Marshall asked the Alabama Supreme Court to withdraw its expedited execution date for Miller as the two parties discussed a possible settlement.
FINISHES: Several states are being investigated for recent lethal injection failures
Huffaker Tuesday dismissed Miller’s pending lawsuit, saying Alabama carried out his death sentence solely by nitrogen hypoxia.
Gov. Kay Ivey approved nitrogen hypoxia as an alternative method in 2018, but it has never been used to judicially execute a human. Because there were no other states from which to obtain information, Alabama had to develop a unique protocol for its use. It still hasn’t finalized its protocol for a nitrogen hypoxia execution, but a prosecutor previously indicated the state is almost done.
During a nitrogen hypoxia execution, the sentenced person would inhale pure nitrogen gas and kill them if their blood oxygen levels dropped. The gas would likely be delivered by a gas mask. A state employee had previously asked Miller to have a gas mask fitted, but Miller refused.
The method has been touted as a “more humane” way to kill someone, but several critics and experts disagree. US Supreme Court Justice Neil Gorsuch wrote in 2019 that the evidence presented to the court indicated that nitrogen hypoxia could cause more pain than a lethal injection, depending on the route of administration.
Miller was sentenced to death in 1999 for the murders of three men in two workplace shootings in Shelby County. Prosecutors said an employee entering Ferguson Enterprises in Pelham saw Miller exit the building on August 5, 1999, before finding Lee Holdbrooks and Scott Yancy dead inside. At the site of another former employer, Miller killed Terry Jarvis.
