Alabama Prosecutors Float, Then Retreat From, Plan to Execute Alan Miller Using Untested Nitrogen Suffocation Procedure

Alabama pros­e­cu­tors have told a fed­er­al judge that the state will not exe­cute death-row pris­on­er Alan Miller by nitro­gen hypox­ia on September 22, 2022, three days after sug­gest­ing there was a ​“very good chance” it would be ready to attempt the first-ever exe­cu­tion by that method.

In a sworn affi­davit filed in the U.S. District Court for the Middle District of Alabama on September 15, 2022, Alabama Department of Corrections Commissioner John Q. Hamm con­tra­dict­ed that asser­tion, stat­ing ​“The ADOC can­not car­ry out an exe­cu­tion by nitro­gen hypox­ia on September 22, 2022.” The affi­davit did not say when the Department, which has been crit­i­cized for the 2½-hour botched attempt­ed exe­cu­tion of Doyle Hamm and the more than 3‑hour botched exe­cu­tion of Joe Nathan James, both by lethal injec­tion, would final­ize its long-promised nitro­gen hypoxia protocol.

Hamm’s affi­davit said that ADOC ​“remains ready to car­ry out [Miller’s] exe­cu­tion by lethal injec­tion on September 22, 2022.”

The tumult over Alabama’s pre­pared­ness to con­duct a nitro­gen-suf­fo­ca­tion exe­cu­tion came in a law­suit brought by Miller seek­ing to bar his exe­cu­tion by lethal injec­tion. During a September 12, 2022 hear­ing, Judge R. Austin Huffaker Jr. asked lawyers for the state whether Alabama would be able to exe­cute Miller by nitro­gen hypox­ia. Deputy attor­ney gen­er­al James Houts respond­ed that there was a ​“very good chance” ADOC could do so but refused to pro­vide a firm answer say­ing the deci­sion would be up to Commissioner Hamm.

Citing what he called Houts’ ​“vague and impre­cise state­ments regard­ing the readi­ness and intent to move for­ward with an exe­cu­tion,” Judge Huffaker issued an order on September 13 direct­ing an ​“appro­pri­ate offi­cial with per­son­al knowl­edge” to pro­vide an answer by 5 p.m. on September 15 ​“defin­i­tive­ly set­ting forth whether or not [ADOC] can exe­cute [Miller] by nitro­gen hypox­ia on September 22, 2022.” 

Alabama’s waf­fling on its pre­pared­ness for Miller’s exe­cu­tion has drawn sharp crit­i­cism. In a September 14, 2022 edi­to­r­i­al, The Dothan Eagle wrote: ​“That state offi­cials find them­selves hob­bling togeth­er a plan in the 11^th hour to meet an arbi­trary exe­cu­tion date is a tes­ta­ment to incompetence.”

In 2018, respond­ing to drug com­pa­nies’ unwill­ing­ness to sell drugs for use in exe­cu­tions, the Alabama leg­is­la­ture adopt­ed nitro­gen hypox­ia as an alter­na­tive to lethal injec­tion if exe­cu­tion drugs were unavail­able or the state’s exe­cu­tion-drug pro­to­col was declared uncon­sti­tu­tion­al. The new law grant­ed death-row pris­on­ers 30 days to opt in to the new method. Miller alleged that he had exer­cised that right, but that ADOC had lost the paper­work. Alabama pros­e­cu­tors assert that he had nev­er sub­mit­ted any form des­ig­nat­ing a method of exe­cu­tion and had wait­ed too long before rais­ing his legal chal­lenge. In the pros­e­cu­tors’ September 15 fil­ing, Marshall wrote that Alabama does ​“not con­cede that the ADOC’s abil­i­ty to car­ry out an exe­cu­tion by nitro­gen hypox­ia is rel­e­vant … [to whether Miller] elect­ed nitro­gen hypox­ia with­in the statu­to­ri­ly set election period.”

Judge Huffaker has not yet ruled on Miller’s claim.

Legal and med­ical experts raised con­cerns about Alabama’s last-minute asser­tion that it might, with bare­ly a week’s notice, attempt to employ an exe­cu­tion method that no one had ever used before, with­out a final­ized or court-reviewed exe­cu­tion pro­to­col, and with­out any train­ing of cor­rec­tions’ per­son­nel in how to car­ry it out. 

Emory University anes­the­si­ol­o­gist Joel Zivot told the Death Penalty Information Center in an email that nitro­gen gas ​“is col­or­less and odor­less” and ​“is dan­ger­ous to any­one in the vicin­i­ty.” While it is ​“hard to acci­den­tal­ly inject” an exe­cu­tion team mem­ber with a lethal injec­tion drug, he said ​“it is pos­si­ble to poi­son with Nitrogen any­one standing nearby.” 

In an inter­view with the Montgomery Advertiser, Zivot chal­lenged the asser­tion by hypox­ia pro­po­nents that nitro­gen suf­fo­ca­tion would be swift and pro­duce a sense of eupho­ria. ​“It’s not going to be euphor­ic,” he said. ​“You know, it may be blood­less, but it won’t be simple.”

DPIC Executive Director Robert Dunham told Fox 6 news in Birmingham that the poten­tial dan­ger to exe­cu­tion per­son­nel and Alabama’s his­toric prob­lems in set­ting IV lines and prop­er­ly admin­is­ter­ing lethal injec­tion drugs coun­sel against untrained staff attempt­ing an exe­cu­tion method that has nev­er been used before. ​“All of it sug­gests that this is not a time to rush into it. There is no valid state inter­est in rush­ing to car­ry out this exe­cu­tion next week using nitro­gen hypox­ia before there’s a chance to exam­ine the pro­to­col, check the safe­ty of it, and ensure that the state is able to car­ry it out in a com­pe­tent way,” Dunham said.