MONTGOMERY, Ala. — Alabama cannot carry out an execution next week by nitrogen hypoxia, the state prison commissioner disclosed Thursday in response to a federal judge’s directive to clarify the status of the untested execution method.
Alabama Corrections Commissioner John Q. Hamm said in a brief affidavit that the state “cannot carry out an execution by nitrogen hypoxia on September 22.” He did not elaborate on where the state stood in developing the new execution method. Hamm said the state is ready to use lethal injection to put an inmate to death next week.
U.S. District Judge R. Austin Huffaker, Jr. ordered Alabama to clarify the status after a state lawyer dangled the possibility of the state being the first to attempt to execute an inmate by nitrogen hypoxia. James Houts, a deputy state attorney general, told Huffaker during a Monday court hearing that it is “very likely” the method could be available for next week’s execution, but Hamm has the final decision.
Alan Miller, who was convicted of killing three men in a 1999 workplace shooting, is scheduled to be put to death on Sept. 22. Miller is seeking to block his scheduled execution by lethal injection, claiming prison staff lost paperwork he returned in 2018 choosing nitrogen hypoxia as his execution method.
Huffaker has not yet ruled on Miller’s request. The judge wanted to know if the state could proceed with nitrogen executions if the use of lethal injection was blocked.
Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions. It’s authorized as an execution method in three states — Alabama, Oklahoma and Mississippi — but has never been used to carry out a death sentence.
The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge last year that it had completed a “system” to use nitrogen gas but did not describe it.
Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method, although lethal injection would remain the primary method for carrying out death sentences. State law gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen.
Miller testified Monday that he is scared of needles so he signed a form selecting nitrogen hypoxia as his execution method. He said he left the form in his cell door tray for a prison officer to pick up. The state said there is no evidence to corroborate his claim.
Miller, a delivery truck driver, was convicted in the 1999 workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.
A defense psychiatrist said Miller suffered from severe mental illness but his condition wasn’t bad enough to use as a basis for an insanity defense under state law.
