Alan Miller Execution Delayed as Alabama Not Ready to Use Nitrogen Hypoxia

A federal judge on Monday blocked Alabama from executing Alan Miller by any method other than nitrogen hypoxia—an untested procedure that Miller says he requested, but the state isn't yet ready to use.

Miller was sentenced to die after being convicted of killing three people in a 1999 workplace shooting. His execution was scheduled for Thursday.

But U.S. District Judge R. Austin Huffaker, Jr. on Monday issued a preliminary injunction that stops Alabama from carrying out the execution by lethal injection.

"Miller will likely suffer irreparable injury if an injunction does not issue because he will be deprived of the ability to die by the method he chose and instead will be forced to die by a method he sought to avoid and which he asserts will be painful," Huffaker wrote in the ruling.

The injury is "the loss of his 'final dignity'—to choose how he will die."

Alabama Attorney General Steve Marshall will appeal the decision, spokesman Mike Lewis told the Associated Press.

Nitrogen hypoxia is approved as an alternative execution method under Alabama law. Two other states have also approved it, but none of them have attempted to put an inmate to death using it.

Alabama said it had finished constructing its nitrogen hypoxia system last year, but that it hasn't released a protocol for its use.

Miller has testified that he returned a state form selecting nitrogen hypoxia as his execution method on the day it was distributed to inmates.

But Alabama prison officials say they have no record of Miller returning the form, and argued that he is just seeking to delay his execution.

Huffaker said he finds Miller's testimony credible. "It is substantially likely that Miller timely elected nitrogen hypoxia," the judge wrote.

James Houts, a deputy state attorney general, told Huffaker during a court hearing last week that it was "very likely" the method could be available for Miller's execution.

John Hamm, the commissioner of the Alabama Department of Corrections, later said in an affidavit that the state "cannot carry out an execution by nitrogen hypoxia on September 22."

In Monday's ruling, the judge noted the possibility that Alabama might soon be able to use nitrogen gas to carry out executions.

"From all that appears, the state intends to announce its readiness to conduct executions by nitrogen hypoxia in the upcoming weeks," the judge wrote.

The method causes death by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions.

But critics have pointed out the risks of putting an inmate to death using an untested method and likened it to human experimentation.

"No state has published a protocol with the details of how it will be carried out" or had an independent expert review it for "a neutral assessment of its reliability," Robert Dunham, the executive director of the Death Penalty Information Center, told Newsweek.

Experimental Method

"No one can say whether it will work the way its proponents say it will. It is quite literally experimental and it's completely unethical to do a test run to experimentally kill someone to figure out what the practical problems in carrying it out may be," he said.

Dunham said there are also questions about the safety of others who may be in the vicinity when a nitrogen gas execution is carried out.

"It is possible to poison anyone in the vicinity of a nitrogen execution. Nitrogen is odorless and colorless," he said. "If a mask is used, what happens when the prisoner attempts to exhale? Where does that go? Will the straps on the death mask produce a seal that will not leak? Will that be true for both a 150-pound prisoner and a 300-pound prisoner? Will it be true of a prisoner who resists having the mask on his face? Will the execution team and spiritual adviser be supplied gas masks? If a gas chamber is used, is it leak-proof?

"All of this makes the details of an execution protocol and competent compliance with its terms extremely critical."

Dunham added: "If prosecutors are telling the truth and a nitrogen hypoxia protocol will be ready imminently, the state loses very little and gains a lot by publishing its protocol, receiving public comment on possible flaws, and practicing the process to reduce the chance of execution-team error."

The Alabama Department of Corrections has been contacted for comment.