Second nitrogen gas execution set to go ahead in Alabama

Alan Miller, 59, is scheduled to be put to death in September

Alabama’s second nitrogen gas execution is set to go ahead as planned after a death row inmate agreed to drop further litigation against the state as part of a settlement agreement.

A federal judge dismissed Alan Miller’s case against Alabama Attorney General Steve Marshall on Monday after the two entered into a “confidential settlement.”

The action came a day before a scheduled federal hearing for Miller, 59, who was trying to block his execution, which is slated to take place between September 26 and 27.

In his lawsuit against the state, Miller raised concerns regarding the nitrogen gas method after media witnesses at the execution of Kenneth Smith in January reported that the man suffered what may have amounted to cruel and unusual punishment.

Smith was the first person in the US to be executed using the nitrogen gas method, a move that was widely condemned by advocacy organizations and the United Nations.

Alan Miller, 59, is set to be put to death in Alabama in September after he agreed to drop further litigation against the state (Copyright 2022 The Associated Press. All rights reserved.)

Miller had suggested that Alabama make several changes when using nitrogen gas for executions, including using medical-grade nitrogen and allowing a trained professional inside the chamber to monitor the gas flow and use of sedatives.

The Associated Press reported that a spokesperson for Marshall could not confirm if the state had agreed to make the changes.

The Attorney General’s office characterized the settlement as a victory for the method’s implementation in death penalty cases.

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

“Miller’s execution will go forward as planned in September.”

The Independent emailed Miller’s attorney for comment. In an email to the Associated Press, Mara E Klebaner, the man’s attorney, said: “Miller entered into a settlement on favorable terms to protect his constitutional right to be free from cruel and unusual punishments.”

Still, Klebaner refuted the characterization of a press release put out by Marshall’s office saying the settlement “successfully defends constitutionality” of nitrogen executions.

“No court upheld the constitutionality of the state’s proposed nitrogen hypoxia method of execution in Mr Miller’s case, thus the state’s claim that it ‘successfully defend(ed)’ that method’s ‘constitutionality’ is incorrect. By definition, a settlement agreement does not involve a ruling on the merits of the underlying claim,” she said.

Miller was convicted of fatally shooting Terry Jarvis, Lee Holdbrooks and Scott Yancy in 1999. The state previously tried to put him to death in September 2022 but failed to meet protocols by a midnight deadline.

Miller had chosen to be put to death with nitrogen execution following the failed attempt.