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A federal judge has ordered Alabama cannot execute Alan Eugene Miller, convicted of a triple homicide more than 20 years ago, by lethal injection next week, after Miller argued that he formally elected to die using another method in 2018.
“Miller has shown, based on the evidence presented, a substantial likelihood of success on the merits… and that the balance of harms weighs in his favor. Therefore, Miller has established his entitlement to a preliminary injunction that prevents the State from executing him by any method other than nitrogen hypoxia,” U.S. District Judge R. Austin Huffaker Jr. wrote in his Monday order.
The judge said in his order that Miller “did not unreasonably delay bringing this lawsuit.”
The Alabama Attorney General’s Office could appeal the order to the U.S. Eleventh Circuit Court of Appeals.
Miller, 57, was set to die by lethal injection on Thursday at 6 p.m. at William C. Holman Correctional Facility in Atmore. His current lawsuit stems from claims he made saying he turned in a form electing to die by nitrogen hypoxia after the method was approved in June 2018. The AG’s Office said there’s no evidence Miller ever completed or submitted a form making that choice.
If a higher court doesn’t overturn Huffaker’s ruling, the execution cannot go forward because it is only prepared to use lethal injection.
No state in the nation has used nitrogen hypoxia for an execution, although several states have laws allowing it. Alabama is currently not ready to carry out such an execution, Alabama Department of Corrections Commissioner John Hamm said in an affidavit.
Read more about the process inmates used to opt for nitrogen hypoxia in 2018, and why it keeps coming up, here
“The ADOC cannot carry out an execution by nitrogen hypoxia on September 22, 2022,” John Hamm said, adding the department “remains ready to carry out (Miller’s) sentence by lethal injection” next week.
After the state approved nitrogen hypoxia in 2018, and the law allowed inmates already sitting on Alabama Death Row—most of whom are behind bars at Holman—a 30 day-window in June 2018 to change the way they would be killed from the default method of lethal injection to nitrogen hypoxia.
“This case presents another occasion for the Court to consider the downstream effects of an Alabama Department of Corrections official’s decision to distribute to death row inmates a form by which inmates could elect their execution by nitrogen hypoxia,” the judge wrote.
Read more: Alabama not ready to use nitrogen hypoxia for Sept. 22 execution
Miller was convicted of killing three men in a Shelby County workplace shooting spree in August 5, 1999. Those men were Lee Holdbrooks, 32; Christopher Scott Yancy, 28; and Terry Jarvis, 39. Ferguson Enterprises. Holdbrooks and Yancy were employees of Ferguson, while Jarvis worked for Post Airgas in Pelham.
Miller was a former employee of Post Airgas, and at the time of the slayings worked at Ferguson.
A representative from the ADOC released a statement on Thursday: “The Alabama Department of Corrections has completed many of the preparations necessary for conducting executions by nitrogen hypoxia. The protocol for carrying out executions by this method is not yet complete. Once the nitrogen hypoxia protocol is complete, ADOC personnel will need sufficient time to be thoroughly trained before an execution can be conducted using this method.”
While the method has never been used, the sponsor of the 2018 bill argued it would be more humane than the state’s current three-drug lethal injection cocktail. The process will center around a prisoner inhaling nitrogen, without any source of oxygen, causing death by asphyxiation. Inhalation of only one or two breaths of pure nitrogen will cause sudden loss of consciousness and, if no oxygen is provided, death.
Deputy Alabama Attorney General James Houts said during a recent hearing that it was “very likely” the state could execute Miller using nitrogen hypoxia if the court deemed the change of method necessary.
The judge said the AG’s Office made “vague and imprecise statements regarding the readiness and intent to move forward with an execution,” and ordered the state to take a definite stance on their readiness. After his order, Hamm’s affidavit was filed.
According to a deposition provided in court records, Miller elected to die by nitrogen hypoxia so he “wouldn’t have to be stabbed with needles.” He said, “I thought it would be simpler. I wouldn’t be stabbed like that or have allergic reactions to the chemicals that they said was in the lethal injection.”
“I thought you just went to sleep,” he said when asked how he thought nitrogen hypoxia worked. He added during his testimony in court on Monday that he didn’t like needles and felt “like a pin cushion” when he had to give blood due to workers having a hard time finding veins in his arm and hands.
“You know, it’s my life. And I know I didn’t want to be stabbed with needles and everything like that,” Miller said in his deposition.
Houts added at the Monday hearing that the victims’ did not choose to be shot.
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