by David M. Reutter
On November 28, 2022, the State of Alabama entered a settlement with condemned prisoner Alan Eugene Miller, agreeing to refrain from further attempts to execute him by means of lethal injection. It further agreed that any future effort to execute Miller will employ his chosen method: nitrogen hypoxia.
Miller, 57, survived one attempt by the state to administer a lethal injection. Sentenced to die for the 1999 murders of three co-workers, he was scheduled to be executed at the William C. Holman Correctional Facility on September 22, 2022. But a federal judge from the Middle District of Alabama granted him an injunction, barring the state from using any other means than the one he elected.
The U.S. Court of Appeals for the Eleventh Circuit affirmed that decision. But the Supreme Court of the United States reversed it, clearing the way for executioners to proceed around 9:00 p.m. – after which they spent 90 minutes poking Miller with needles in a fruitless search for a suitable vein. At one point, they used a smartphone flashlight to aid their search, according to a court filing. The effort was abandoned about 30 minutes before the death warrant expired at midnight. [See: PLN, Nov. 2022, p. 40.]
The failure apparently validated Miller’s needle phobia, which was the reason he elected nitrogen hypoxia. State voters approved the execution method following another botched execution in 2018. [See: PLN, Dec. 2018, p. 36.] The nitrogen used in the procedure does not cause death; the lack of oxygen it creates does. Proponents claim it does not allow the carbon dioxide buildup that causes feelings of suffocation. But Oregon Health and Sciences University oncologist and professor Dr. Charles D. Blanke said he has interviewed pulmonologists and anesthesiologists who disagree with that claim.
Not long after botching Miller’s lethal injection, Alabama failed to find a suitable vein to administer another lethal injection to another condemned prisoner, Kenneth Eugene Smith, on November 17, 2022. That gave the state the distinction of having the only two living execution survivors in the U.S.
In Miller’s suit against the state, he claimed that he chose to be executed by nitrogen hypoxia. The settlement in his lawsuit came about a week after the office of state Attorney General Steve Marshall (R) said in court filings it was seeking to resolve the matter. See: Miller v. Hamm, USDC (M.D. Ala.), Case No. 2:22-cv-00506.
Before trying and failing to kill Miller and Smith, the state had trouble carrying out the execution of Joe Nathan James, Jr. on July 28, 2022. He was probed repeatedly with a needle before executioners finally cut open his arm to expose a vein.
Moreover, no state has ever used nitrogen hypoxia for capital punishment. Alabama has yet to develop a procedure or means to carry it out. Deputy Attorney General James Houts admitted that the state was having trouble finding a firm to certify a system to deliver the nitrogen gas, with one Tennessee firm bowing to objections from neighboring religious leaders and backing out in February 2022. Another company, Airgas, said it “will not supply Alabama nitrogen or other inert gasses to induce hypoxia for the purpose of human execution.” Nevertheless, Marshall remains eager to get the ball rolling.
“Let’s be clear,” he said. “This needs to be expedited and done quickly, because we have victims’ families right now asking when we will be able to set that next date and I need to give them answers.”
Additional source: Atlantic, Birmingham News
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