Alabama Drops Lethal Injection for Alan Miller, But May Attempt Execution With Nitrogen Gas

Alabama offi­cials have agreed not to make a sec­ond attempt to exe­cute Alan Miller by lethal injec­tion after the state had to call off his September 22, 2022 exe­cu­tion because of the fail­ure to estab­lish an IV line. If the state seeks to exe­cute Miller in the future, it will use nitro­gen hypox­ia, a method that has nev­er been used for an exe­cu­tion. In the months since Miller’s exe­cu­tion attempt, Alabama also attempt­ed and failed to exe­cute Kenneth Smith. In response to the series of prob­lems, Governor Kay Ivey paused exe­cu­tions, order­ing a ​“top-to-bot­tom review” of the state’s recent death-penalty failures. 

In 2018, Alabama autho­rized exe­cu­tion by nitro­gen gas as an alter­na­tive to lethal injec­tion. Prior to the state’s attempt to exe­cute him, Miller had alleged that he had des­ig­nat­ed nitro­gen hypox­ia as the method of his exe­cu­tion but that Alabama Department of Corrections (ADOC) per­son­nel had lost his des­ig­na­tion form. During Miller’s chal­lenge to the state’s deci­sion to use lethal injec­tion, state pros­e­cu­tors sug­gest­ed that ADOC could exe­cute him by lethal gas. But when the fed­er­al dis­trict court gave the state a firm dead­line to declare if it was ready to pro­ceed by nitro­gen hypox­ia, ADOC indi­cat­ed that it could not do so. 

On September 19, 2022, the dis­trict court issued a pre­lim­i­nary injunc­tion enjoin­ing Alabama from exe­cut­ing Miller ​“by any method oth­er than nitro­gen hypox­ia.” A divid­ed pan­el of the U.S. Court of Appeals for the Eleventh Circuit upheld the injunc­tion on the after­noon of Miller’s exe­cu­tion. At about 9:15 p.m. Central Time, the U.S. Supreme Court issued a 5 – 4 rul­ing that vacat­ed the injunc­tion, leav­ing Alabama approx­i­mate­ly 2½ hours to car­ry out the exe­cu­tion before the war­rant expired. The exe­cu­tion then began, but after the exe­cu­tion team attempt­ed to insert a catheter for at least 90 min­utes (while punc­tur­ing Miller with a nee­dle approx­i­mate­ly 18 times), ADOC Commissioner John Hamm ordered the exe­cu­tion to be halted. 

Miller’s attor­neys imme­di­ate­ly secured an order from a fed­er­al court requir­ing the state to pre­serve evi­dence from the exe­cu­tion attempt. Less than two weeks lat­er, the Alabama Attorney General’s office filed an expe­dit­ed motion to set a new exe­cu­tion date for Miller. In response, Miller’s lawyers filed a request in fed­er­al court to bar Alabama from try­ing again to exe­cute him by lethal injec­tion. U.S. District Judge R. Austin Huffaker Jr. approved a set­tle­ment agree­ment on November 29, in which the state agreed that any future attempt to exe­cute Miller would only be car­ried out by nitrogen hypoxia. 

Miller is one of three peo­ple who have sur­vived exe­cu­tion attempts in Alabama. In 2018, the state attempt­ed to exe­cut­ed Doyle Lee Hamm, even­tu­al­ly call­ing off the exe­cu­tion after near­ly two and a half hours. Hamm died of can­cer in 2021. Less than two months after the failed exe­cu­tion of Miller, Alabama tried to exe­cute Kenneth Smith on November 17. Two exe­cu­tion attempts in Ohio also failed due to the state’s inabil­i­ty to estab­lish an IV line. The two pris­on­ers involved in those attempts – Romell Broom and Alva Campbell – both died of nat­ur­al caus­es before the state could attempt anoth­er exe­cu­tion. If Alabama does pro­ceed to exe­cute Miller by nitro­gen hypox­ia, he would be the first per­son in the mod­ern era of the U.S. death penal­ty to be sub­ject­ed to two execution attempts.