Alabama death row inmate sues to stop nitrogen execution

A group of nitrogen bottles on stands. Alabama says it is ready to conduct an execution using nitrogen gas, but experts are skeptical of claims that the method would be painless. (File)

An Alabama death row inmate has sued to stop his pending execution by nitrogen gas, arguing it violates his constitutional rights.

In a lawsuit filed Friday in U.S. District Court for the U.S. Middle District of Alabama, attorneys for Alan Eugene Miller, sentenced to death for the murder of three co-workers in 1999, said that the execution method violated Miller’s Eighth Amendment protections and his right to due process.

The attorneys also alleged that the state was retaliating against him for discussing the state’s botched attempt to execute Miller in 2022.

“Defendants are silencing him by seeking his execution in a manner that deviates from their pattern and practice in selecting inmates for execution. This is unlawful retaliation against Mr. Miller’s exercise of his First Amendment right to free speech, and a violation of his Fourteenth Amendment right to equal protection under the law,” Miller’s attorneys write in the lawsuit.

Miller would be the second person executed by nitrogen gas. . In January, Alabama put Kenneth Eugene Smith to death by the method. Media witnesses saw Smith gasping and writhing during the procedure.

“Alabama is evidently unable to carry out a nitrogen hypoxia execution without cruelly superadding pain and disgrace, and prolonging death,” the lawsuit said. “This is a violation of Mr. Miller’s Eighth Amendment right to be free from cruel and unusual punishments.”

The method has drawn condemnation from civil rights groups as well as the United Nations, who likened the method to torture. The American Veterinary Medical Association discourages using nitrogen to euthanize animals and recommends they be sedated before carrying out the procedure.

The scheduled execution would be the second time the state attempts to execute Miller. In September 2022, Miller entered the execution chamber in Atmore for what would have been death by lethal injection. Corrections staff could not connect an IV to veins in Miller’s arms, legs or neck, and turned him upside down on the gurney in their efforts, leaving him there for 20 minutes, according to the lawsuit. The execution was called off after the warrant expired.

The lawsuit claims that Miller’s execution will take place before 16 death row inmates who have exhausted their appeals and chosen to be executed by nitrogen gas, and accuses state officials of moving his execution for political purposes.

“Defendants Ivey and Marshall are elected officials, and Defendant Hamm is a political appointee,” Miller’s attorneys said in the suit. “All three derive a political benefit from silencing Mr. Miller, who made public statements and filed a lawsuit about the State’s failed attempt to execute him.”

The lawsuit also alleges that the state’s decision violates Miller’s equal protection rights under the 14th Amendment.

“Mr. Miller has a right to be treated the same as other persons who elected nitrogen hypoxia whose conventional appeals have been exhausted,” Miller’ lawsuit states.

Smith’s execution plays a key role in Miller’s Eighth Amendment claim against cruel and unusual punishment.

“The State predicted that ‘ADOC’s nitrogen hypoxia protocol will rapidly reduce oxygen inside the mask, cause unconsciousness within seconds, and cause death within minutes,’” the lawsuit states.

The lawsuit demands that should the state carry out a nitrogen execution that it use a mask that creates an airtight seal around Miller’s face and use medical professionals to ensure that mask remains on his face during the execution and supervise the flow of nitrogen. They also want medical professionals to be present in case the execution goes awry instead of corrections officers.

His attorneys also want the state to use medical-grade nitrogen and use a sedative on Miller before commencing the flow of nitrogen.

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