MONTGOMERY, Alabama — Alabama’s attorney general said Monday that another execution using nitrogen gas will take place in September after the state reached a plea agreement with the inmate who would be the second person to be put to death using the new method.
Alabama and attorneys for Alan Miller, who was convicted of killing three men, reached a “confidential settlement agreement” to end the lawsuit Miller filed, according to a court document filed Monday. Miller’s lawsuit cited witness accounts of the January execution of Kenneth Smith with nitrogen gas while seeking to prevent the state from using the same protocol on him.
Court records did not provide information about the terms of the agreement. Miller had proposed several changes to the state’s nitrogen gas protocol, including the use of medical nitrogen, having the gas flow monitored by a trained professional and the use of sedatives before the execution. Will Califf, a spokesman for Alabama Attorney General Steve Marshall, said he could not confirm whether the state had agreed to make changes to execution procedures.
“Miller has entered into a settlement on favorable terms to protect his constitutional right to be free from cruel and unusual punishment,” Mara E. Klebaner, an attorney representing Miller, wrote in an email Monday night.
Marshall described the settlement as a victory for the use of nitrogen gas as an execution method. His office said it will allow Miller’s execution in September using nitrogen gas.
“The outcome of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” Marshall said in a statement.
“Miller’s complaint was based on media speculation that Kenneth Smith would receive cruel and unusual punishment at his January 2024 execution, but what the state showed Miller’s legal team undermined that false narrative. Miller’s execution will go forward as scheduled in September.”
Marshall’s office issued a press release announcing the settlement, saying the attorney general “successfully defends the constitutionality” of nitrogen executions. A lawyer for Miller disputed Marshall’s assessment.
“No court has upheld the constitutionality of the State’s proposed nitrogen hypoxia method of execution in Mr. Miller’s case, so the State’s claim that it “successfully defended” the “constitutionality” of that method is false. By definition, a settlement agreement does not constitute a determination on the merits of the underlying claim,” Klebaner wrote in an email.
The settlement was filed a day before a federal judge was set to hold a hearing on Miller’s request to block his upcoming execution on September 26. Klebaner said that by reaching a plea agreement, the state avoided a public hearing in the case.
Alabama executed Smith in January in the first execution using nitrogen gas. The new execution method uses a respirator mask placed over the inmate’s face to replace the air he or she breathes with nitrogen gas, causing the person to die from lack of oxygen.
Miller’s lawyers had pointed to witness descriptions of Smith shaking in convulsions for minutes during his execution. The attorneys argued that the nation’s first nitrogen execution was a “disaster” and that the state’s protocol did not produce the quick death the state had promised a federal court.
The state argued that Smith had been holding his breath, causing the execution to take longer than expected.
Miller, a delivery truck driver, was convicted of murdering three men – Terry Jarvis, Lee Holdbrooks and Scott Yancy – in two consecutive workplace shootings in 1999.
Alabama had previously attempted to execute Miller by lethal injection. But the state called off the execution after it failed to connect an IV line to the 351-pound inmate. The state and Miller agreed that any further execution attempts would be carried out with nitrogen gas.