Alabama to Move Forward With Nitrogen Gas Execution in September After Court Settlement

MONTGOMERY, Alabama. Alabama’s attorney general said Monday that another nitrogen gas execution will take place in September after the state reached an agreement with the inmate who will be the second person put to death using the new method.

Alabama and lawyers for Alan Miller, who was convicted of murdering three men, have reached a “confidential settlement” to end litigation brought by Miller, according to a court document filed Monday. Miller’s lawsuit cited witness descriptions of Kenneth Smith’s execution with nitrogen gas in January as he tried to stop the state from using the same protocol on him.

Court records did not disclose the terms of the settlement. Miller suggested several changes to the state’s nitrogen gas protocol, including the use of medical-grade nitrogen, supervision of the gas flow by a trained professional and the use of sedatives before execution. Will Califf, a spokesman for Alabama Attorney General Steve Marshall, said he could not confirm whether the state has agreed to make changes to execution procedures.

“Miller entered into an agreement on favorable terms to protect his constitutional right to be free from cruel and unusual punishment,” Mara E. Klebaner, an attorney representing Miller, wrote in an email Monday night.

Marshall described the agreement as a victory for the use of nitrogen gas as a method of execution. His office said it will allow Miller’s execution to be carried out in September using nitrogen gas.

“The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” Marshall said in a statement.

“Miller’s complaint was based on media speculation that Kenneth Smith suffered cruel and unusual punishment in the January 2024 execution, but what the state demonstrated to Miller’s legal team undermined this false narrative. Miller’s execution will proceed as planned in September.”

Marshall’s office titled a press release announcing the agreement that the attorney general “successfully defends the constitutionality” of nitrogen executions. An attorney for Miller disputed Marshall’s assessment.

“No court has upheld the constitutionality of the state’s proposed nitrogen hypoxia execution method in Mr. Miller’s case, therefore the state’s claim that it “successfully defended” the “constitutionality” of that method is incorrect. By definition, a settlement does not involve a decision on the merits of the underlying claim,” Klebaner wrote in an email.

The agreement was filed a day before a federal judge was scheduled to hold a hearing on Miller’s request. to block his execution on September 26th. Klebaner said that by reaching a settlement the state avoided a public hearing on the case.

Alabama executed Smith in January, the first execution using nitrogen gas. The new method of execution uses a respiratory mask placed on the inmate’s face to replace respiratory air with nitrogen gas, causing the person to die from lack of oxygen.

Miller’s lawyers pointed to witness descriptions of Smith trembling in seizure-like spasms for several minutes during his execution. Lawyers argued that the nation’s first nitrogen execution was a “disaster” and that the state’s protocol did not provide the quick death the state promised a federal court.

The state argued that Smith held his breath, which caused the execution to take longer than anticipated.

Miller, a delivery truck driver, was convicted of killing three men – Terry Jarvis, Lee Holdbrooks and Scott Yancy – during consecutive workplace shootings in 1999.

Alabama had previously attempted to execute Miller by lethal injection. But the state called off the execution after failing to hook up intravenous access to the 351-pound inmate. The state and Miller agreed that any further execution attempts would be done with nitrogen gas.