Alabama prosecutors tell federal judge state won’t execute death row inmate Alain Miller by nitrogen hypoxia on September 22, 2022, three days after he suggested there was a “very good chance” he would be ready to attempt the first-ever execution by this method.
In an affidavit filed with the U.S. District Court for the Intermediate District of Alabama on September 15, 2022, Alabama Department of Corrections Commissioner John Q. Hamm contradicted this claim, stating that “ADOC cannot perform an execution by nitrogen hypoxia on September 22, 2022”. The affidavit does not specify when the department, which has come under fire for the botched 2½-hour attempted execution of Doyle Hamm and the botched execution of more than 3 hours of Joe Nathan Jamesboth by lethal injection, would finalize his long-promised nitrogen hypoxia protocol.
Hamm’s affidavit said ADOC “remains ready to carry out [Miller’s] execution by lethal injection on September 22, 2022.”
The uproar over Alabama’s readiness to carry out an execution by nitrogen suffocation came amid a lawsuit filed by Miller seeking to enjoin his execution by lethal injection. In a hearing on September 12, 2022, Judge R. Austin Huffaker Jr. asked state attorneys if Alabama would be able to execute Miller by nitrogen hypoxia. Assistant Attorney General James Houts responded that there was a “very good chance” the ADOC could do so, but declined to provide a firm response indicating that the decision would be up to Commissioner Hamm.
Citing what he called Houts’ “vague and imprecise statements regarding willingness and intent to go ahead with an execution,” Judge Huffaker issued an order Sept. 13 directing an “appropriate official with personal knowledge” to provide a response by 5 p.m. on September. 15″ definitely indicating whether or not [ADOC] can run [Miller] by nitrogen hypoxia on September 22, 2022.”
Alabama’s dithering over its preparation for Miller’s execution has drawn heavy criticism. In an editorial from September 14, 2022, Dothan’s Eagle wrote, “To have state officials hobble around an 11th-hour plan to meet an arbitrary execution date is a testament to incompetence.”
In 2018, responding to pharmaceutical companies’ reluctance to sell execution drugs, the Alabama legislature adopted nitrogen hypoxia as an alternative to lethal injection if execution drugs were not available or if the state drug enforcement protocol was declared unconstitutional. The new law gave death row inmates 30 days to opt for the new method. Miller alleged that he exercised that right, but ADOC lost the paperwork. Alabama prosecutors say he never submitted a form designating a method of execution and waited too long to raise his legal challenge. In the September 15 prosecutors’ filing, Marshall wrote that Alabama “does not concede that ADOC’s ability to perform an execution by nitrogen hypoxia is relevant… [to whether Miller] nitrogen hypoxia elected during the electoral period fixed by law.
Judge Huffaker has yet to rule on Miller’s claim.
Legal and medical experts have expressed concern over Alabama’s last-minute claim that it could, on barely a week’s notice, attempt to employ a method of execution no one had ever used before, without an enforcement protocol finalized or reviewed by the court, and without any training. prison staff on how to carry it out.
Emory University anesthesiologist Joel Zivot told the Death Penalty Information Center in an email that nitrogen gas “is colorless and odorless” and “is dangerous to anyone near it. “. Although it is “difficult to accidentally inject” a member of the execution team with a lethal injection drug, he said “it is possible to poison anyone standing in proximity”.
In an interview with the Advertiser Montgomery, Zivot challenged hypoxia proponents’ claim that nitrogen suffocation would be quick and produce a feeling of euphoria. “It’s not going to be euphoric,” he said. “You know, it might be bloodless, but it won’t be easy.”
DPIC Executive Director Robert Dunham told Fox 6 News in Birmingham that the potential danger to delivery personnel and Alabama’s historical problems in setting up IV lines and administering drugs correctly lethal injectables advise against untrained personnel attempting a method of execution that has never been used before. “All of this suggests that now is not the time to rush. There is no valid interest for the state to rush to perform this execution next week using nitrogen hypoxia before have the opportunity to review the protocol, verify its safety and ensure that the state is able to competently execute it,” Dunham said.
Ivana Hrynkiw, Alabama, not ready to use nitrogen hypoxia for Sept. 1. 22 execution, AL.com, September 15, 2022; Kim Chandler, Alabama says he’s not ready to be executed by nitrogen hypoxia, Associated Press, September 15, 2022; Josh Gauntt, We may soon find out if an untested execution method will be used on AL Sentenced to death, WBRCFox 6 News, Birmingham, September 14, 2022; Editorial, Incompetence of Execution, Dothan Eagle, September 14, 2022; Evan Mealins, Can nitrogen be used in the next run? Judge Wants State’s Final Response, Montgomery Advertiser, September 13, 2022; Evan Mealins, Nitrogen Hypoxia to Execute a Human: ‘Bloodless, but it won’t be easy,’ Montgomery Advertiser, September 13, 2022; Kim Chandler, Alabama Wants Nitrogen Hypoxia Executions: What’s That?, Associated Press, September 13, 2022; Lee Hedgepeth, Is Alabama ready to gas a convict? Do not be ‘vague, said the judge, WIAT, SCS42Birmingham, September 13, 2022; Ivana Hrynkiw, Alabama, said the untested nitrogen hypoxia method could be used for execution next week, AL.com, September 12, 2022.
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