Alabama may not kill Alan Eugene Miller on Thursday, AL.com reports. A federal judge issued a stay for Miller yesterday after Miller argued he had officially chosen nitrogen hypoxia as his method of execution, a protocol the Alabama Department of Corrections has admitted it is not ready to carry out.
The 57-year-old Miller was scheduled to die at 6 p.m. Eastern on Thursday for shooting three men in August 1999 in two workplaces where Miller had worked.
U.S. District Judge R. Austin Huffaker Jr. wrote in his Monday order, according to the paper, “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” despite ADOC’s claims it never received the form from Miller. Therefore, because Miller opted for hydrogen hypoxia over lethal injection, and the state can’t execute him with his legally preferred choice, he can’t be executed until the nitrogen hypoxia method is available.
No state has used nitrogen hypoxia for execution, although Alabama approved it as an execution method in 2018. It opened a 30-day window in June of that year for those on death row to opt for it instead of lethal injection as the method the state could use to kill them. But earlier this week, the Department of Corrections Commissioner filed an affidavit confirming the state isn’t ready to kill by nitrogen hypoxia. And they had argued that because Miller didn’t opt for it anyway, officials can go ahead with execution by lethal injection.
The state Attorney General’s office can appeal the order to the U.S. Eleventh Circuit Court of Appeals and if successful, the execution to go forward using lethal injection.
Still, fundamental questions remain about the state’s execution protocol. Alabama hasn’t revealed the expiration dates of the execution drugs it plans to use, nor the source of those drugs. As in all the death penalty states, Alabama has had difficulty obtaining the drugs, and the source and the manufacturer are of legitimate concern.