Alabama schedules second nitrogen gas execution for man who survived lethal injection attempt

Alabama officials have rescheduled the execution of a man who survived his first execution attempt.

The state first attempted to execute Alan Eugene Miller on 22 September 2022 via lethal injection. However, the execution was called off after officials failed to connect an IV line.

Now, Miller will be executed by nitrogen hypoxia on 26 September, Alabama governor Kay Ivey announced on Wednesday. A former delivery driver, Miller was convicted of killing three people in a 1999 workplace shooting.

In 2022, Alabama vowed not to attempt another lethal injection on Miller. The commitment came after he sued the state, claiming they lost his paperwork which indicated he chose nitrogen hypoxia as his method. At the time, there was no protocol in place for hypoxia execution in the state.

Miller will be the second person executed by nitrogen gas in the US. The first person, Kenneth Smith, was executed in Alabama in January. The state of Alabama botched a total of three executions in 2022, including Miller’s and Smith’s.

Journalists inside the room described how Smith appeared to struggle as he was put to death. Reporter Lee Hedgepeth said: “I’ve been to four previous executions and I’ve never seen a condemned inmate thrash in the way that Kenneth Smith reacted to the nitrogen gas.”

Despite previously advocating for it, Miller is now challenging the execution method in a US district court, arguing the current protocol violates the constitutional ban on cruel and unusual punishment, the Associated Press reports.

His attorneys cited witness descriptions of Smith’s execution in their filings, arguing for a different protocol.

“An alternative method of nitrogen hypoxia execution is available that is feasible, readily implemented, and will significantly reduce a substantial risk of severe pain,” Miller’s attorney, J Bradley Robertson, told local outlet WVTM 13 last week.

Meanwhile, Alabama attorney general Steve Marshall has said Smith’s nitrogen gas execution was “textbook”.

“Nitrogen hypoxia as a means of execution is no longer an untested method,” Mr Marshall said in January after Smith’s execution. “It is a proven one.”

The state asked a judge to dismiss Miller’s motion earlier this week. His legal team must now respond to that request.

The Independent has contacted Mr Marshall’s office and Miller’s attorneys for comment.

The Independent and the non-profit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to its Business Leaders Declaration Against the Death Penalty – with The Independent as the latest on the list. We join high-profile executives including Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.