Following a botched lethal injection in 2018, Alabama passed a law that gave death row prisoners a brief window in which they could choose to be killed by a method never before tried: nitrogen hypoxia, in which a person is fatally deprived of oxygen.
To Alan Eugene Miller, who was convicted of murdering three men in 1999, the untried method of suffocation sounded better than lethal injection because, after a bad experience getting blood drawn, he had come to fear needles. He said he signed and returned a form in which he chose the new method, but that prison officials had apparently lost the form.
The state suggested that he had never made the request and, saying they were not ready to carry out an execution by hypoxia in any case, sought to move forward with a lethal injection. A federal judge this week sided with Mr. Miller, ruling that it was likely that Mr. Miller had made the request.
The judge temporarily blocked the execution, but late on Thursday night, the U.S. Supreme Court overruled him and said, in a 5-4 order without explanation, that the execution could go ahead. Prison officials began trying to insert an intravenous line into Mr. Miller’s veins, but he was spared when they were unable to do so before midnight, when his death warrant expired.
The tumultuous night, in which Mr. Miller was condemned to die and then spared again — by a clock instead of a judge — ended with Mr. Miller back in his prison cell. It was not immediately clear when the state would try to execute him again, though Gov. Kay Ivey of Alabama said she expected that the execution would be rescheduled “at the earliest opportunity.”
On Friday, a judge granted an emergency request by Mr. Miller’s lawyers to meet with Mr. Miller so that they could photograph any wounds he may have suffered during the attempt to insert the intravenous line.
Justice Amy Coney Barrett of the Supreme Court, who was appointed by former President Trump, joined the court’s three liberal members in a dissent to the court’s order, in which they said only that they would not have removed the block on Mr. Miller’s execution.
Mr. Miller, 57, was convicted of killing three men on Aug. 5, 1999, at two Alabama businesses where he had worked, a plumbing company and a warehouse selling oxygen canisters.
Ms. Ivey said she was praying for the families of the three victims, Lee Michael Holdbrooks, Christopher S. Yancey and Terry Lee Jarvis, and that the postponement of the execution did not erase his guilt.
“It does not change the fact that Mr. Miller never disputed his crimes,” Ms. Ivey said. “And it does not change the fact that three families still grieve.” She added that the victims “did not choose to die by bullets to the chest.”
Alabama is not alone in authorizing executions by nitrogen hypoxia, though no state has actually carried one out. Oklahoma and Mississippi have also legalized the method, in response to concerns about botched executions and the difficulty of obtaining lethal injection drugs as a result of pressure on pharmaceutical companies from doctors and anti-death penalty activists.
The 2018 law in Alabama gives death-row prisoners a 30-day window in which they can choose to be killed by nitrogen hypoxia, in which a prisoner is supplied with air containing only nitrogen, depriving the brain and other organs of essential oxygen. Several prisoners besides Mr. Miller have opted for the alternative method, but none of them have been given execution dates.
Mr. Miller’s lawyer said that Mr. Miller had opted for nitrogen hypoxia, but that the prison’s system of recording prisoners’ requests was so chaotic that the administrators must have lost his form. The state suggested that Mr. Miller had not made the request, and used as evidence a transcript of a telephone call Mr. Miller made to his brother, in which he said that other prisoners had requested the method but did not mention doing so himself. The judge overseeing the case said the audio of that call was not clear enough to understand.
The Alabama prisons chief, John Q. Hamm, told the court that the state was not prepared to execute Mr. Miller by hypoxia on Thursday, the day specified in his death warrant. He did not specify what was needed to undertake such an execution or when Alabama might be ready to try the method for the first time.
R. Austin Huffaker Jr., the U.S. District Court judge in Montgomery who has overseen the case, found on Monday that it was “substantially likely” that Mr. Miller had requested to be killed by hypoxia. Judge Huffaker, who was appointed by President Trump and joined the bench in 2019, barred the state from executing Mr. Miller by any means other than nitrogen hypoxia, pending any final ruling. His order was upheld by an appellate court on Thursday but quickly overturned by the Supreme Court.
Robert Dunham, the executive director of the Death Penalty Information Center, a nonprofit group that collects data on executions, said the Supreme Court had eroded its credibility by saying the execution could take place.
“Today is another clear example that, when it comes to executions, it’s the outcome that matters to this court, whether or not it’s legal,” Mr. Dunham said. “That’s not what a neutral arbiter of the law does. That’s not what a legitimate court does.”
State officials have not disputed that prisoners who asked to be killed by nitrogen hypoxia would be entitled to that method. They said it was reasonable to proceed with lethal injection in Mr. Miller’s case because there was no record of his having made such a request.
Despite the difficulty states have faced in getting lethal injection drugs, the method has remained the most common way to kill death row prisoners in recent years, although Tennessee executed six men by electrocution between 2013 and 2020.
South Carolina had planned to kill a prisoner by firing squad until a judge ruled this month that the method was unconstitutional. Only one person has been killed by firing squad since 1996. In Oklahoma, which authorized nitrogen hypoxia after a series of botched lethal injections, all five prisoners killed since last year were executed by lethal injection.
Source: The New York Times