Ala. isn't ready to use nitrogen hypoxia for Sept. 22 execution
While the method has never been used, some argue that it will be more humane than the state’s current three-drug lethal injection cocktail
By Ivana Hrynkiw
ALABAMA — The state of Alabama is not ready to be the first in the nation to carry out an execution using nitrogen hypoxia, the Alabama Attorney General’s Office revealed in a court filing Thursday.
“The ADOC cannot carry out an execution by nitrogen hypoxia on September 22, 2022,” Alabama Department of Corrections Commissioner John Hamm said in an affidavit. The affidavit was filed in the case of Alan Eugene Miller, the 57-year-old inmate at William C. Holman Correctional Facility in Atmore who is set to die on Sept. 22.
Hamm said the department “remains ready to carry out (Miller’s) sentence by lethal injection” next week.
The state first approved nitrogen hypoxia as a method of execution in 2018, and the law allowed inmates already sitting on Alabama Death Row—most of whom are behind bars at Holman—a 30 day-window in June 2018 to change the way they would be killed from the default method of lethal injection to the newly approved, but not yet tested, method of nitrogen hypoxia.
Miller’s current federal lawsuit stems from claims he made saying he turned in a form electing to die by nitrogen hypoxia. The AG’s Office said there’s no evidence Miller ever completed or submitted a form making that choice.
“(The state does) not concede that the ADOC’s ability to carry out an execution by nitrogen hypoxia is relevant to the question of whether (Miller) is likely to prove his claim that he elected nitrogen hypoxia within the statutorily set election period,” attorneys from the AG’s Office said in a Thursday filing.
While the method has never been used, some argue that it will be more humane than the state’s current three-drug lethal injection cocktail. The process will center around a prisoner inhaling nitrogen, without any source of oxygen, causing death by asphyxiation.
Nitrogen itself does not cause death; the hypoxia, or lack of oxygen, does. According to federal court records involving an inmate, who was previously executed by lethal injection, inhalation of only one or two breaths of pure nitrogen will cause sudden loss of consciousness and, if no oxygen is provided, death.
Sen. Trip Pittman, the sponsor of the bill that became state law, said he got the idea of nitrogen hypoxia executions from Oklahoma. Pittman said at the time that he believes it will be a humane method.
The filing comes after a late Tuesday order from U.S. District Judge R. Austin Huffaker Jr. In his order, the judge said the AG’s Office must, by Thursday at 5 p.m., “file an affidavit or declaration of Commissioner John Q. Hamm, Attorney General Steve Marshall, or other appropriate official with personal knowledge, definitively setting forth whether or not the (state) can execute ( Alan Miller) by nitrogen hypoxia on September 22, 2022.”
Deputy Alabama Attorney General James Houts told the judge on Monday during a hearing that he must be “very careful” in his statement, but that it was “very likely” the state could execute Miller using the nitrogen hypoxia method if the court says it cannot execute Miller by lethal injection.
The judge said the AG’s Office made “vague and imprecise statements regarding the readiness and intent to move forward with an execution.”
A representative from the ADOC sent out a statement after the affidavit: “The Alabama Department of Corrections has completed many of the preparations necessary for conducting executions by nitrogen hypoxia. The protocol for carrying out executions by this method is not yet complete. Once the nitrogen hypoxia protocol is complete, ADOC personnel will need sufficient time to be thoroughly trained before an execution can be conducted using this method.”
According to a deposition provided in court records, Miller elected to die by nitrogen hypoxia so he “wouldn’t have to be stabbed with needles.” He said, “I thought it would be simpler. I wouldn’t be stabbed like that or have allergic reactions to the chemicals that they said was in the lethal injection.”
“I thought you just went to sleep,” he said when asked how he thought nitrogen hypoxia worked. He added during his testimony in court on Monday that he didn’t like needles and felt “like a pin cushion” when he had to give blood due to workers having a hard time finding veins in his arm and hands.
During his career, before he showed up to work one August morning in 1999 and killed three former and current co-workers, Miller said he worked with gases like nitrous and delivered it to medical offices for procedures by dentists and plastic surgeons. That knowledge of nitrous is what he associated with his 2018 decision to die by nitrogen hypoxia, he said.
“You know, it’s my life. And I know I didn’t want to be stabbed with needles and everything like that,” Miller said in his deposition. “And then at the time, I would have thought it would have been a more humane thing because I sort of did it myself as it could be like you go to the dentist, even though I have never been under gas at a dentist. But I’ve heard other people say that you just go under, and you come back out. But this one you ain’t going to come back out of.”
During the deposition last week, Houts asked Miller if he would be fitted with a gas mask in case the state would be able to execute him using nitrogen hypoxia. “If a correctional officer came to try to just, as a planning precaution, fit a mask to your face to make sure there were no issues, is that something that you would be cooperative with, or is that something that would upset you?” he asked.
Miller responded: “It could be something that would upset me… Because why ain’t nobody else going through the same thing?... Why they are not doing this and you asking the same question of them?
“I don’t want to die. I just want to be treated fairly.”