Alabama’s second execution using nitrogen hypoxia to proceed

Alabama Death Row inmate Alan Eugene Miller settled his case with Alabama Attorney General Steve Marshall, Governor Kay Ivey and the Alabama Department of Corrections.

Miller was convicted of killing three men, Lee Holdbrooks, Scott Yancey, and Terry Lee Jarvis on August 5, 1999, during a workplace shooting. 

Although Miller was initially set to be executed in September 2022, personnel could not insert an intravenous line and postponed the execution after an hour of searching for a vein. Two months later, Gov. Ivey called for a “top-to-bottom review” of execution protocols, shortly after the fourth botched execution in the state since 2018.

The state agreed in November 2022 that any future execution of Miller would be performed using nitrogen hypoxia, which had not been utilized at the time of the ruling. 

After the controversy following the first nitrogen hypoxia execution of Kenneth Smith in January, Miller challenged the method. The suit argued that it would be a violation of the ban on cruel and unusual punishment to put him to death using the same protocol, which uses a mask to deliver the nitrogen gas.

Miller also claimed those who would be fitting him in the gas mask were “incompetent” during a settlement deposition.

“I don’t think y’all know what you’re doing,” Miller told a state attorney during the deposition. “And these guys can’t even open a cell door sometimes. They’re keystone cops is basically what they are.”

Months were spent in discovery and after reviewing key documents and deposing the state’s witnesses, Miller settled with the state. Barring any further legal barriers, his execution will continue as planned.

“After dismissing most of his claims, the federal court allowed Miller to obtain discovery based a single claim that was ‘just barely’ sufficient to proceed,” Marshall said in a statement. “Now, after the conclusion of that discovery, Miller has agreed to settle his case and to dismiss, with prejudice, all of his claims without so much as a hearing.”

Next month, Miller will be the second person executed using nitrogen hypoxia in the country, two years after the state failed to locate a vein and execute him using the lethal injection method.