A judge has blocked Thursday’s execution in the fatal injection of an Alabama death row inmate who says he requested to be killed by nitrogen hypoxia.


Without the warrant, the inmate, Alan Eugene Miller, “likely would have suffered irreparable injuries,” Austin Huffaker Jr. wrote. In his order, the US district judge said, “because they will deprive him of the ability to kill by the method of his choice and instead he will be forced to die by a method that he wanted to avoid and that he says will be painful.”

As a result, the state cannot execute Miller “by any method other than nitrogen hypoxia until ordered by a court.”

The case has focused on nitrogen hypoxia, which experts and critics say has yet to be proven humane or effective and can never be tested ethically, although advocates say it could be simpler, easier and safer than lethal injection. But inmates like Miller are making an “uninformed choice,” said Robert Dunham, executive director of the Death Penalty Information Center, because the method has never been used before.

The judge’s order came Monday after Miller — on death row for a 1999 triple murder — sued the commissioner of the Alabama Department of Corrections, the state attorney general and its director, alleging that corrections officials were moving to execute him by lethal injection. the paperwork said he chose to die by inhaling nitrogen gas.

Miller’s complaint said failure to comply with his request violated his constitutional rights.

State officials suggested Miller did not make such a choice and said they had no record of his preference, court filings show.

The case drew widespread attention last week when a Department of Corrections lawyer said it was “highly likely” the state would execute Miller by nitrogen hypoxia, which in theory involves replacing the critical oxygen in the air with nitrogen until the inmate can breathe. 100% nitrogen.

The statement — though “vague and imprecise,” the judge said — came more than four years after Alabama authorized the method as an alternative to lethal injection, which remains the primary execution method for the US federal government and 27 states. still have the death penalty.

Only two other states — Oklahoma and Mississippi — have approved the use of nitrogen hypoxia in executions, but none have ever used it.

Days after Alabama made the claim, however, its corrections chief backtracked. The state “is unable to execute by nitrogen hypoxia,” Commissioner John Hamm wrote in a court filing, but “remained prepared to carry out plaintiff’s sentence by lethal injection on September 22, 2022.”

That led to a court order on Monday that appears to force the state to scrap its nitrogen hypoxia execution protocol before moving forward with Miller’s execution. It’s not clear when it might be ready.

“Suffice it to say,” the judge wrote, “the protocol and the (Department of Corrections’) willingness to carry out executions by hypoxia nitrogen has been a moving target.”

The department had “completed many of the preparations necessary to carry out executions by hypoxia in nitrogen,” but its protocol “was not yet complete,” he told CNN in a statement last week. “Once the nitrogen hypoxia protocol is completed, (department) personnel will need sufficient time to be thoroughly trained using this method before performing an execution.”

The sun sets in January behind Holman Correctional Facility, home of Alabama's death row.

Death by nitrogen gas

Advocates of nitrogen gas executions say it can be simpler, easier and safer than lethal injection. And those claims can be attractive, given states’ ongoing problems obtaining drugs for lethal injections and recent botched executions because an inmate suffered disproportionately or the process deviated from prescribed protocol by officials.

But critics and experts reject those arguments, saying there is no evidence that execution by nitrogen hypoxia would adhere to constitutional protections against cruel and unusual punishment of prisoners because it has never been used and cannot be ethically tested.

“There could be no legitimate research. There’s no way to design a research project that would be ethical… There would never be a human study. It has no medical reason to do it and it would never pass ethical oversight. It would allow something like this to happen,” Joel said. Dr. Zivot, associate professor of anesthesiology and surgery at Emory University.

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“This is all fake, I guess. It’s all unknown,” he told CNN. “They can’t test it ethically. They’ll just test it … and then they’ll decide whether they think they’ve killed somebody and whether or not it’s cruel.”

However, inmates like Miller are choosing the unproven method because of concerns about the pain they may experience during lethal injection, Dunham of the Death Penalty Information Center told CNN: “They’re choosing a method that they hope for. They’re not choosing a method that they know for sure will be torturous.” .

None of the three states that have adopted nitrogen hypoxia as an execution method have yet publicly released a protocol detailing how it would work. In addition to oxygen, about 78% of the Earth’s air is composed of nitrogen; in theory, a nitrogen gas execution would involve replacing the oxygen in the air with nitrogen until the prisoner suffocates in what advocates describe as a painless death.

The gas could be delivered in a chamber or through a mask, said Dunham, whose organization describes itself as not taking a position on the death penalty but has been critical of the way it is administered.

The Alabama state lawmaker who sponsored the 2018 bill to allow nitrogen hypoxia as an execution method believed it would be more humane than lethal injection, he told AL.com at the time. Oklahoma officials made similar statements later that year when they announced plans to move forward with executions for inhaling nitrogen hypoxia, or inert gas.
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The week before the announcement, Alabama suspended Doyle Hamm’s execution after he was stabbed 11 times in an effort to insert an intravenous line. That, Oklahoma Department of Corrections Director Joe Allbaugh called “inhumane.”

With the new methods, “after a couple of breaths, the individual loses consciousness, he doesn’t feel anything”, he claimed.

But that’s speculation, Zivot said.

While there are known cases of people dying from inhaling too much nitrogen — Zivot pointed to accidental deaths and suicides in industrial settings — the execution is different, he said. It’s impossible to know what it feels like to die by inhaling nitrogen gas, and it’s unclear what that death might look like or whether it fits the Eighth Amendment’s protection against “cruel and unusual punishment.”

“Can nitrogen gas kill people? Yes,” he said. “Yet a big rock … I understand the chemistry of how nitrogen gas can kill people. But whether nitrogen gas can kill people and whether it’s consistent with the Constitution, that’s not known.”

“A choice without information”

Even without a full, official picture of what a nitrogen-hypoxia execution should look like, Alabama inmates like Miller can opt out because of the risks associated with lethal injection, Dunham said.

“The odds of being tortured to death by lethal injection are pretty high. The likelihood of a vacuum with nitrogen hypoxia is uncertain,” Dunham told CNN. “I think it’s an opportunity to avoid a sure bad thing, as opposed to an affirmative embrace of nitrogen hypoxia.”

In his complaint, Miller and his attorneys pointed to two such cases in Alabama: the first was Hammen’s, and the second was the July execution of Joe Nathan James, which has been widely criticized, especially because a report in The Atlantic showed a private autopsy. James’ “suffered a long death.”
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The execution team “strictly followed established protocol” for James’ death, which followed a three-hour delay, before a Department of Corrections spokeswoman told the Montgomery Advertiser: “Protocol says if the veins are such that intravenous access cannot be given, the team will do the central line procedure. Hopefully , that was not necessary and in due time, intravenous access was established.”

Zivot, who told CNN he saw James’ private autopsy, said the state “tortured him for three hours,” cutting his skin to try to find a vein to insert an intravenous line, which is not part of Alabama’s lethal injection protocol.

They hope to avoid executions like these inmates on death row by choosing nitrogen hypoxia, Dunham said. Indeed, states’ claims that nitrogen hypoxia is quick, effective and “relatively painless,” he said, echo the arguments Texas first used in 1982 about the electric chair and lethal injection.

“They believe it,” Dunham said of nitrogen hypoxia proponents. “There’s no doubt about that. And he might be right. But he might be wrong, and we won’t know the answer until the nitrogen asphyxiation executions happen.”

CNN’s Jamiel Lynch contributed to this report.