Alan Eugene Miller: Alabama set to execute second inmate with nitrous gas, a relatively new method of capital punishment

CNN
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An Alabama inmate faces death for the second time in two years as he is set to become the second known person to be executed by nitrogen hypoxia, a controversial method that critics say amounts to torture.

A previous attempt to execute Alan Eugene Miller, 59, by lethal injection was called off two years ago after state officials said they could not access Miller’s veins before the execution warrant expired.

Alabama Republican Gov. Kay Ivey has designated a 30-hour window starting Thursday morning for Miller’s execution.

The second execution attempt comes after a federal lawsuit filed by Miller over the use of nitrogen gas during his execution was settled last month. Miller had challenged the state’s nitrogen hypoxia protocol, claiming it could cause him undue suffering, violating his Eighth Amendment protections against cruel and unusual punishment, CNN previously reported.

The terms of the agreement are confidential, though state Attorney General Steve Marshall has presented it as evidence that Alabama’s nitrogen gas execution method — which was used for the first and only time earlier this year in the execution of Kenneth Smith — is constitutional.

“The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” Marshall said in a statement.

Proponents of the nitrogen hypoxia method of execution, which involves replacing an inmate’s breathing with 100 percent nitrogen, say the person would likely lose consciousness shortly after the procedure begins, making it more humane than other execution methods. However, doctors have said they cannot accurately determine if or when a person would lose consciousness when exposed to high concentrations of nitrogen gas.

Witnesses to Smith’s execution in January said he was shaking and writhing on the stretcher for several minutes before he died.

CNN has repeatedly reached out to Miller’s attorneys for comment on his settled lawsuit and execution.

Miller has been facing the end of his life for more than two decades. He was sentenced to death in 2000 for the 1999 murders of Lee Holdbrooks, Scott Yancy and Terry Lee Jarvis.

Miller had worked with each of the victims and became upset when he believed the three “had spread rumors about him,” according to a statement from the Alabama attorney general’s office.

On the morning of Aug. 5, 1999, Miller shot two of three men at Ferguson Enterprises in Pelham, Alabama, according to court documents.

“I’m tired of people spreading rumors about me,” Miller said, armed with a gun, as he left his employer’s office, according to court documents.

Yancy was shot three times, according to court documents, and was unable to move after the first shot, “which passed through his groin and into his spine, paralyzing him.”

Holdbrooks was shot six times and tried to crawl down a hallway to escape before Miller shot him in the head, “causing him to die in a pool of blood,” the documents state.

After killing Holdbrooks and Yancy, Miller headed to his former employer, Post Airgas, where Jarvis worked.

Miller came in and said, “Hey, I heard you’ve been spreading rumors about me.”

Jarvis responded that he had not spread rumors about Miller, but moments later Miller shot Jarvis “multiple times.”

Miller was later arrested on the highway, according to court documents, with “a Glock pistol with one round in the chamber and 11 rounds in the magazine.”

A forensic psychiatrist who testified for Miller’s defense determined that he was mentally ill and suffered from a delusional disorder, which led him to believe that the victims were spreading rumors about him. The psychiatrist concluded, however, that Miller’s mental illness did not meet the criteria for an insanity defense in Alabama.

“I feel like it’s taken way too long to get to this point,” Holdbrooks’ widow Tara Barnes told CNN on Tuesday.

CNN has attempted to reach family members of Yancy and Jarvis.

In September 2022, Alabama authorities attempted to execute Miller by lethal injection, but failed because they could not access his veins in the required time frame.

Miller was scheduled to be executed by lethal injection after a U.S. Supreme Court ruling overturned a lower court injunction in a long-running dispute over whether he would die by that method or by nitrogen hypoxia, CNN previously reported.

Before that first attempt, Miller and his lawyers had fought to ensure he would be executed by nitrogen gas, a method he had previously chosen but which the state was not prepared to use.

After this failed attempt, Miller was sent back to death row.

Miller and his attorneys filed a lawsuit challenging the state’s nitrogen hypoxia protocol after it was first used in Smith’s execution.

Smith was sentenced to death for his role in a 1988 contract killing and, like Miller, had already survived a failed attempt to execute him by lethal injection in 2022.

The nitrogen gas killing method involves forcing a prisoner to inhale 100 percent nitrogen gas, depriving them of the oxygen needed to survive. But nitrogen gas killing has been criticized because experts say it can cause excessive pain and even torture.

At Smith’s execution earlier this year, he appeared conscious for “several minutes,” and for two minutes afterward he was “shaking and writhing on a gurney,” according to a media witness report.

This was followed by several minutes of deep breathing before his breathing began to slow “until it was no longer perceptible to media witnesses,” CNN previously reported.

“It’s clear that it wasn’t the instantaneous, painless death that they promised,” Dr. Jonathan Groner, a professor of surgery at Ohio State University’s School of Medicine, told CNN last week. “Many suggest it wasn’t good, it wasn’t pleasant.”

United Nations experts “unequivocally condemned” Smith’s execution and the use of nitrogen gas inhalation, saying in a statement that it was “nothing less than state-sanctioned torture.”

“The use, for the first time on humans and as an experiment, of a method of execution that has been shown to cause suffering in animals is simply outrageous,” the UN experts said.

“The theory is that if you get rid of all the oxygen and you just breathe pure nitrogen, you don’t feel this intense pressure, like you’re holding your breath, right? That’s not really how it works,” said Groner, who has studied capital punishment for more than two decades.

While Alabama is the only state to have tested this method of execution, it is not the only one to have adopted it. Louisiana, Oklahoma and Mississippi have also authorized death by nitrogen hypoxia, according to the Death Penalty Information Center.

CNN’s Dakin Andone and Lauren Mascarenhas contributed to this report.