The office of Alabama’s attorney general has finalised a settlement with death row inmate Alan Miller over the state’s plan to execute him using nitrogen gas. Details of the settlement remain confidential, and Miller’s lawsuit has been dismissed with prejudice, preventing it from being refiled. His execution is scheduled between 26 and 27 September.
Alabama is scheduled to proceed with its second nitrogen gas execution after the state reached a settlement agreement with attorneys for death row inmate Alan Miller. https://t.co/qTlFGufPbW
— WAKA News (@WAKA8News) August 6, 2024
Miller had contested Alabama’s nitrogen hypoxia protocol, arguing it could cause undue suffering, thus violating his Eighth Amendment rights against cruel and unusual punishment. His legal team did not respond to requests for comment.
Republican Attorney General Steve Marshall claimed the settlement proves Alabama’s nitrogen gas execution method, first used earlier this year, is constitutional. The method involves forcing the inmate to inhale 100% nitrogen gas, depriving them of oxygen.
Marshall stated, “The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane.” He dismissed Miller’s lawsuit as “based on media speculation” that Kenneth Smith, the first person executed by nitrogen gas in the US, suffered cruel and unusual punishment in January.
If Miller is executed next month, it will be the second attempt following his 1999 conviction for the fatal shootings of Terry Jarvis, Lee Holdbrooks, and Scott Yancy. Miller had previously chosen nitrogen gas for his execution, but the state was unprepared to use it at the time. His first execution attempt, via lethal injection, was aborted when officials couldn’t establish an intravenous line before the death warrant expired.
The state later agreed not to execute Miller by any method other than nitrogen hypoxia. Miller and his attorneys argued in federal court that Alabama had not addressed the alleged failures in Smith’s execution and proposed changes to the protocol, including a different mask and the use of a medical professional to monitor the process. Miller, who weighs 351 pounds, expressed concern that the mask might not fit him properly.
A hearing regarding Miller’s request for a preliminary injunction was expected on Tuesday. Miller’s arguments centred around Smith’s execution, which had raised concerns about Alabama’s heavily redacted protocol. Witnesses reported seeing Smith shaking and writhing on the gurney despite state claims that the execution would be quick and painless. Marshall described the execution as “textbook,” and Corrections Commissioner John Hamm suggested Smith had been holding his breath.
Miller questioned this explanation during his deposition, asking, “So you’re basically telling Kenny Smith to cooperate with y’all killing him?” He challenged the claim that Smith was holding his breath, noting the absence of medical professionals to confirm this.
Miller’s complaint proposed modifications to Alabama’s protocol to reduce the risk of severe pain, including using a mask that fits properly, involving medical professionals, using medical-grade nitrogen, and administering a sedative before the gas. The defendants, including Marshall, Hamm, Governor Kay Ivey, and the prison warden, largely dismissed these proposals, citing difficulties in sourcing medical-grade nitrogen and finding medical professionals willing to participate.
Miller wanted the sedative to “calm me down,” avoiding a scenario where he might appear to be resisting. However, he declined to cooperate with corrections officials for a mask fitting, deeming it “immoral” and “psychological terror,” though he would sit for a fitting by a neutral third party. He also stated he would not hold his breath during the execution.
