Alabama is preparing to carry out the nation’s second execution ever using nitrogen gas after becoming the first state to use the new procedure in January.
Alan Miller is set to die by the process on Thursday, Sept. 26, in which a mask is placed over the inmate’s head that forces the inmate to inhale pure nitrogen.
Miller, who was given a reprieve in 2022 after his execution was called off when officials were unable to connect an intravenous line, was sentenced to die after being convicted of killing three men during back-to-back workplace shootings in 1999.
Back in August, Alabama and attorneys Miller reached a “confidential settlement agreement.” It stemmed from a lawsuit filed by Miller, citing witness descriptions of the January execution of Kenneth Smith with nitrogen gas as he sought to block the state from using the same protocol on him.
The court records did not disclose the terms of the agreement. Miller had suggested several changes to the state’s nitrogen gas protocol, including the use of medical grade nitrogen, having a trained professional supervise the gas flow and the use of sedative before the execution.
Attorneys for Miller had pointed to witness descriptions of Smith shaking in seizure-like spasms for several minutes during his execution. The attorneys argued that nation’s first nitrogen execution was “disaster” and the state’s protocol did not deliver the quick death that the state promised a federal court that it would.
The state argued that Smith had held his breath which caused the execution to take longer than anticipated.
Marshall described the settlement as a victory for the use of nitrogen gas as an execution method. His office said it will allow Miller’s execution to be carried out in September with nitrogen gas.
“The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” Marshall said in a 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.”
The settlement was filed a day before a federal judge was scheduled to hold a hearing in Miller’s request to block his upcoming Sept. 26 execution. By entering into a settlement agreement, the state avoided a public hearing in the case.
