Alabama to carry out the second nitrogen gas execution in the US

ATMORE, Ala. — (AP) — Alabama is preparing to carry out the nation's second nitrogen gas execution Thursday as disagreements continue over the humaneness of the new method of putting prisoners to death.

Alan Eugene Miller, 59, is scheduled to be executed with nitrogen gas at a south Alabama prison two years after the state unsuccessfully attempted to execute him by lethal injection. Miller was convicted of killing three men — Lee Holdbrooks, Christopher Scott Yancy and Terry Jarvis — in back-to-back workplace shootings in 1999.

In January, Alabama put Kenneth Smith to death in the first nitrogen gas execution, a new method that involves placing a respirator gas mask over the inmate's face to replace breathable air with pure nitrogen gas, causing death by lack of oxygen.

Alabama officials and advocates have argued over whether Smith suffered an unconstitutional level of pain during his execution after he shook in seizure-like spasms for more than two minutes while strapped to the gurney and then gasped for breath for several minutes.

“Alabama’s nitrogen hypoxia system is reliable and humane,” Alabama Attorney General Steve Marshall said last month in announcing a lawsuit settlement agreement that allowed Miller’s execution. The state has scheduled a third nitrogen execution for November.

But death penalty opponents and advocates for other inmates facing nitrogen execution maintain that what happened with Smith shows there are problems with, or at least questions about, the method and say it should be scrutinized more before being used again.

“The fact that the state scheduled two more nitrogen executions without publicly acknowledging the failures of the first one is concerning. Going through with a second in the world nitrogen execution without reassessing the first, and under a continued veil of secrecy is not how a transparent government operates,” John Palombi, an attorney with the Federal Defenders Program who is representing another inmate facing nitrogen execution in November, wrote in an email.

Death penalty opponents delivered petitions Wednesday asking Gov. Kay Ivey to halt the execution. Miller is one of five inmates scheduled to be put to death in the span of one week, an unusually high number that defies a yearslong trend of decline in the use of the death penalty in the U.S.

Miller, a delivery truck driver, was convicted of capital murder for the shootings that claimed three lives and shocked the city of Pelham, a suburban city just south of Birmingham.

The Aug. 5, 1999, workday had begun normally, a witness testified, until Miller showed up armed with a handgun saying he was “tired of people starting rumors on me.”

Police say that early that morning Miller entered Ferguson Enterprises and shot and killed two co-workers: Holdbrooks, 32, and Yancy, 28. He then drove 5 miles (8 kilometers) away to Post Airgas, where he had previously worked, and shot Jarvis, 39.

All three men were shot multiple times. A prosecutor told jurors at the 2000 trial that the men "are not just murdered, they are executed.”

Miller had initially pleaded not guilty by reason of insanity but later withdrew the plea. A psychiatrist hired by the defense said that Miller was mentally ill but his condition wasn’t severe enough to use as a basis for an insanity defense, according to court documents. Jurors convicted Miller after 20 minutes of deliberation and recommended by a 10-2 vote that he receive a death sentence, which a judge imposed.

Alabama attempted to execute Miller by lethal injection in 2022 but called off the execution after being unable to connect an IV line to the 351-pound (159-kilogram) inmate. The state and Miller agreed that any other execution attempt would use nitrogen gas.

The state might be making minor adjustments to execution procedures. Miller had initially challenged the nitrogen gas execution plans, citing witness descriptions of what happened to Smith. But he dropped the lawsuit after reaching a settlement last month with the state.

Court records did not disclose the terms of the agreement, but Miller had suggested several changes to the state’s nitrogen gas protocol. Those include giving him an oral sedative before the execution. The Associated Press filed a records request seeking information about any changes to execution procedures. The Alabama Department of Corrections said Thursday that it objected to releasing the requested information because it “seeks a confidential agreement not currently subject to disclosure.”

Mara E. Klebaner, an attorney representing Miller, said last month that he “entered into a settlement on favorable terms to protect his constitutional right to be free from cruel and unusual punishments.”

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