Alabama says it won’t be ready to use nitrogen hypoxia method at Sept. 22 execution – USA TODAY

Evan Mealins| Montgomery Advertiser

Alabama will not be ready to usenitrogen hypoxiato execute a death row inmate by Sept. 22, the date of its next scheduled execution, Alabama Department of Corrections Commissioner John Hamm said in an affidavit filed in federal court today.

"The ADOC cannot carry out an execution by nitrogen hypoxia on September 22, 2022," the affidavit states.

The only other statement in the affidavit, other than Hamm's declaration of sound mind, says, "The ADOC remains ready to carry out (Alan Eugene Miller's) sentence by lethal injection on September 22, 2022."

Nitrogen hypoxia sometimes called nitrogen suffocation or nitrogen asphyxiation has never been used to execute a human being. Alabama is one of only three states to have authorized its use in capital punishment, none of which have released a protocol for how they would perform an execution by nitrogen hypoxia.

The announcement comes two days after a federal judgeordered that the relevant public officials answer definitivelyby Thursday at 5 p.m. whether the state has the means and ability to use nitrogen hypoxia to execute Alan Eugene Miller on Sept. 22.

Miller, 57, has asked the court to stay his execution by lethal injection,arguing that the state lost the formhe says he submitted in 2018 electing nitrogen hypoxia as his preferred method of execution.

During a hearing in Miller's case on Monday, a state attorney indicated the state was nearing finalization of a protocol for anitrogen hypoxia execution. James Houts, a deputy state attorney general who is representing ADOC Commissioner John Hamm and Attorney General Steve Marshall in Miller's lawsuit, said it was very likely that the state could carry out an execution by nitrogen hypoxia by Sept. 22.

The protocol is there, but I wont say its final, Houts said at the federal court hearing.

Millers attorneys have argued that the state is depriving Miller of equal protection under the law, comparing his case to that ofJarrod Taylor, whose execution by lethal injection was called off after he alleged that Alabama officials lost his nitrogen hypoxia election form. Taylor waived his attorney-client privilege and provided copies of the signed form and email communications to the court in 2021. Millers attorneys have not provided similar privileged documentation.

R. Austin Huffaker Jr., U.S. district judge for the middle district of Alabama, now weighs Millers request for a preliminary injunction of execution by lethal injection with only a week until he is scheduled to be put to death by the state.

Miller was sentenced to die for the 1999 killings of Lee Michael Holdbrooks, Christopher Scott Yancy and Terry Lee Jarvis in two workplace shootings. Miller was convicted of the killings in Shelby County but lived in Autauga County.

The untried method of executioninvolves forcing a person to inhale pure nitrogen gas. Nitrogen, which makes up roughly 80% of the air we breathe, is not used by the body and is not harmful by itself. But without oxygen to breathe, the bodys processes shut down, resulting in death.

The gas would be administered either via a mask or in an enclosed chamber. Although Alabama has not released its protocol for a nitrogen hypoxia execution, its likely to use a gas mask. Houts said Miller had been asked if he would be fitted for a mask and refused.

Experts have raised logistical questions regarding the safety of witnesses, prison staff and others. Whether the condemned person would be sedated in advance also has not been explained.

Its unknown whether asphyxiation from nitrogen would cause a painful death. Proponents touted it as a more humane method and cited evidence that critics feel is questionable. One expertdenied possible euphoric effectsand said the method is not humane.

Contact Evan Mealinsatemealins@gannett.comor follow him on Twitter@EvanMealins.

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Alabama says it won't be ready to use nitrogen hypoxia method at Sept. 22 execution - USA TODAY