Alabama Must Disclose Status of Nitrogen Hypoxia Executions

MONTGOMERY, Alabama — A federal judge has told Alabama to stop being vague and give a firm answer by Thursday night if the prison system is ready to use the untested nitrogen hypoxia execution method during of an execution next week.

U.S. District Judge R. Austin Huffaker, Jr. gave the state a deadline to file an affidavit, or statement, stating whether the state might attempt to execute inmate Alan Miller by nitrogen hypoxia on September 22 if the use of lethal injection is blocked. The order came after the state hinted at the possibility during a Monday court hearing that it was prepared to become the first state to attempt an execution with nitrogen hypoxia.

Nitrogen hypoxia is a proposed method of execution in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. It is licensed as a method of execution in three states – Alabama, Oklahoma and Mississippi – but has never been used.

The state provided “vague and imprecise statements regarding willingness and intent to proceed with an execution on September 22, 2022, by nitrogen hypoxia,” Huffaker said.

The judge asked the state on Monday whether it was willing to use the method when executing Miller. A state attorney responded that it was “very likely” he could use nitrogen hypoxia next week, but said the state prison commissioner has the final decision.

“On or before September 15, 2022 at 5:00 p.m. CDT, Defendants shall file an affidavit or statement of Commissioner John Q. Hamm, Attorney General Steve Marshall, or other appropriate official with personal knowledge, concluding whether or not the Defendants may execute plaintiff by nitrogen hypoxia on September 22, 2022,” the judge wrote in a Tuesday order.

Miller is seeking to block his planned execution by lethal injection, saying prison staff lost documents he turned over in 2018 by choosing nitrogen hypoxia as the method of execution.

Miller testified Monday that he had a fear of needles, so he signed a form selecting nitrogen hypoxia as a method of execution. He said he left the form on the tray of his cell door for a prison officer to retrieve. The state said there was no evidence to support its claim.

Miller, a delivery truck driver, was convicted of the 1999 workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy in one business, then drove to another location to shoot Jarvis, evidence shows.

A defense psychiatrist said Miller suffered from serious mental illness, but his condition was not serious enough to form the basis of an insanity defense under state law.

In 2018, Alabama lawmakers approved legislation allowing nitrogen hypoxia as an alternative method of execution, although lethal injection remains the primary method of carrying out death sentences. State law gave inmates a brief window to select nitrogen as a method of execution. A number of inmates chose nitrogen.

The Alabama Department of Corrections did not respond to an email seeking comment on the status of the proposed new method of execution or what it would look like.

The state has disclosed little information about the new method of execution. Last year, the Alabama Department of Corrections told a federal judge it had developed a “system” to use nitrogen gas, but did not describe it.

ABC News

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