‘Execution survivor’ Alan Miller reaches settlement with state
Alabama won’t seek another lethal injection date for an inmate whose September execution had been halted because of problems establishing an intravenous line, according to the terms of a settlement agreement approved on Monday. The state agreed to never use lethal injection again as an execution method to put Alan Eugene Miller to death. Any future effort to execute him will be done by nitrogen hypoxia, an execution method authorized in Alabama but that has never been used to carry out a death sentence in the US. There is currently no protocol in place for using nitrogen hypoxia. On Tuesday, U.S. District Judge R. Austin Huffaker Jr. approved the settlement agreement in a lawsuit brought by Miller seeking to prevent another lethal injection attempt. Miller had argued that the state lost paperwork stating he picked nitrogen hypoxia as his execution method and then subjected him to torture during the failed execution attempt. At the time, Miller’s attorneys called him the “only living execution survivor in the United States.” Miller was scheduled to be executed by lethal injection on September 22, but the state called off the execution after being unable to connect an IV line to the 351-pound inmate. Miller said that when prison staff tried to find a vein, they poked him with needles for over an hour and, at one point, left him hanging vertically as he lay strapped to a gurney. Alabama has acknowledged problems with IV access during at least four executions since 2018. Three of those had to be halted. Earlier this month, the execution of Kenneth Eugene Smith was halted after the execution team tried for an hour to connect an IV line. Last week, attorneys for Smith filed a lawsuit against the prison system, saying that the state violated the U.S. Constitution, various court orders, and its own lethal injection protocol during the botched execution attempt earlier this month. Smith’s attorneys are asking a federal judge to forbid the state from making a second attempt to execute him, saying Smith was already “subjected to ever-escalating levels of pain and torture” on the night of the failed execution. Alabama also called off the 2018 execution of Doyle Lee Hamm for the same reasons. He reached an agreement with the state that prevented further execution attempts, although he remained on death row. He later died of natural causes. Prison officials blamed time constraints, specifically the midnight deadline, for the three halted executions. The state’s July execution of Joe Nathan James was carried out, but only after a three-hour delay caused at least partly by the same problem with accessing an IV line. Last week Alabama Gov. Kay Ivey announced a pause on executions in order to review the procedures. The Republican governor cited concern for victims’ families. Miller was sentenced to death after being convicted of a 1999 workplace rampage in which he killed Terry Jarvis, Lee Holdbrooks, and Scott Yancy. The settlement agreement likely prevents another execution attempt in the near future since Alabama has not announced procedures for using nitrogen hypoxia, and there will be litigation over the humaneness of the method before a state tries to use it. Republished with the permission of The Associated Press.
Kay Ivey asks Steve Marshall to withdraw state’s two pending motions to set execution dates
Governor Kay Ivey on Monday asked Attorney General Steve Marshall to withdraw the State’s two pending motions to set execution dates in the cases of Alan Eugene Miller and James Edward Barber, the only two death row inmates with such motions currently pending before the Alabama Supreme Court. This follows Thursday’s botched attempt to execute Kenneth Eugene Smith and previous troubling executions. Ivey has ordered Alabama Department of Corrections Commissioner John Hamm to undertake a top-to-bottom review of the State’s execution process and how to ensure the State can successfully deliver justice going forward. “For the sake of the victims and their families, we’ve got to get this right,” Ivey said. “I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here.” “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment,” Ivey continued. “I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure until I am confident that we can carry out the legal sentence.” The governor also requests that the attorney general not seek additional execution dates for any other death row inmates until the top-to-bottom review is complete. Ivey said that she appreciates the hard work of AG Marshall and his team to pursue justice in these cases and looks forward to receiving the input of his office, as appropriate, as the review moves forward. Commissioner Hamm agreed with Ivey. “I agree with Governor Ivey that we have to get this right for the victims’ sake,” Hamm said. “Everything is on the table – from our legal strategy in dealing with last-minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.” Miller gunned down Lee Holdbrooks, age 32, Scott Yancy, age 28, and Terry Jarvis, age 39, in a workplace-related shooting in Shelby County on July 31, 2000. Barber, a handyman, robbed and killed elderly neighbor Dorothy Epps, age 75, in Harvest in Madison County in 2001. Lethal injection is the preferred method of execution because it is supposedly more humane than the electric chair, firing squad, gas chamber, hanging, or beheading, but Smith was allegedly strapped to a gurney for four hours Thursday night while Alabama Department of Corrections (ADOC) employees tried in vain to find a blood vein so that the State could kill him before ADOC finally gave up. U.S District Judge R. Austin Huffaker Jr. on Friday granted a request from Smith’s lawyers to visit with Smith and take photographs of his body. Huffaker also ordered the State to preserve notes and other materials related to what happened in the botched execution. This was the third failed execution attempt by the State of Alabama since 2018. To connect with the author of this story, or to comment, email brandonmreporter@gmail.com.
Attorneys: Alan Eugene Miller endured ‘torture’ during execution attempt
An Alabama inmate said prison staff poked him with needles for over an hour as they tried to find a vein during an aborted lethal injection last month. At one point, they left him hanging vertically on a gurney before state officials made the decision to call off the execution. Attorneys for 57-year-old Alan Eugene Miller wrote about his experience during Alabama’s September 22 execution attempt in a court filing made last week. Miller’s attorneys are trying to block the state from attempting a second lethal injection. Two men in scrubs used needles to repeatedly probe Miller’s arms, legs, feet, and hands. At one point, using a cell phone flashlight to help their search for a vein, according to the October 6 court filing. The attorneys called Miller the “only living execution survivor in the United States” and said Alabama subjected Miller “to precisely the unnecessary and wanton infliction of pain that the Eighth Amendment was intended to prohibit.” Alabama has asked the state Supreme Court to set a new execution date for Miller, saying the execution was canceled only because of a time issue as the state faced a midnight deadline to get the lethal injection underway. “Despite this failed execution, the physical and mental torture it inflicted upon Mr. Miller, and the fact that Defendants have now botched three lethal injection executions in just four years, Defendants relentlessly seek to execute Mr. Miller again—presumably by lethal injection,” attorneys for Miller wrote, referencing an execution that was canceled and another that took three hours to get underway. “What then, in Defendants’ view, is a constitutional amount of time to spend stabbing someone with needles in an attempt to kill them?” his attorneys wrote. The 351-pound (159-kilogram) inmate testified in an earlier court hearing that medical workers always have difficulty accessing his veins, and that is why he wanted to be executed by nitrogen hypoxia, a newly approved execution method that the state has yet to try. Miller said he was led into the execution chamber at 10 p.m., about an hour after the U.S. Supreme Court lifted an injunction that had been blocking the lethal injunction, and was strapped to the gurney at about 10:15 p.m. After the two men used needles to probe various parts of his body for a vein, also using a phone flashlight to help, Miller told the men, “he could feel that they were not accessing his veins, but rather stabbing around his veins.” Later, a third man then began slapping his neck in an apparent attempt to look for a vein. The three men in scrubs stopped their probing and left the chamber after there was a loud knock on a death chamber window from the state’s observation room, according to the court filing. A prison officer then raised the gurney to a vertical position. Miller said the wall clock read 11:40 p.m., and he estimated that he hung there for about 20 minutes before he was let down and told that his execution was canceled for the evening. “Mr. Miller felt nauseous, disoriented, confused, and fearful about whether he was about to be killed, and was deeply disturbed by his view of state employees silently staring at him from the observation room while he was hanging vertically from the gurney. Blood was leaking from some of Mr. Miller’s wounds,” the motion stated. Miller was sentenced to death after being convicted of a 1999 workplace rampage in which he killed Terry Jarvis, Lee Holdbrooks, and Scott Yancy. “Due to the lateness of the hour, the Alabama Department of Corrections was limited in the number of attempts to gain intravenous access it could make. ADOC made the decision to halt its efforts to obtain IV access at approximately 11:30 p.m., resulting in the expiration of the court’s execution warrant,” the state attorney general’s office wrote in the request for a new date. This is at least the third time Alabama has acknowledged problems with vein access during a lethal injection. The state’s July execution of Joe Nathan James took more than three hours to get underway. Alabama called off the 2018 execution of Doyle Hamm after being unable to establish an intravenous line. Republished with the permission of The Associated Press.
Alabama seeks new execution date for Alan Miller
Alabama is asking a court to swiftly set a new execution date for an inmate who had his lethal injection called off last month after multiple failed attempts to connect an intravenous line to the man’s veins. The Alabama attorney general’s office, in the Tuesday court filing, asked the Alabama Supreme Court to set a new execution date for Alan Eugene Miller. The state did not give a timeframe but asked the justices to take the matter up before deciding a pending execution date request involving another inmate. The Alabama Department of Corrections attempted to put Miller to death on September 22, but officials called off the lethal injection after the execution team was unable to connect the intravenous line. The state faced a midnight deadline to get the execution underway before the death warrant expired. Miller, 57, was sentenced to death after being convicted of a 1999 workplace rampage in which he killed Terry Jarvis, Lee Holdbrooks, and Scott Yancy. Miller’s attorneys are expected to fight the effort to set a new execution date. U.S. District Judge R. Austin Huffaker Jr., at the request of Miller’s attorneys, ordered Alabama to preserve notes and medical materials from the failed execution attempt. Court documents have not disclosed exactly how long the state tried to connect an IV line to Miller. However, a lawyer for the prison system told Huffaker that there had been multiple attempts in the approximately 2.5 hours that elapsed between the U.S. Supreme Court clearing the way for the execution shortly after 9 p.m. and the state calling it off at about 11:30 p.m. “Due to the lateness of the hour, the Alabama Department of Corrections was limited in the number of attempts to gain intravenous access it could make. ADOC made the decision to halt its efforts to obtain IV access at approximately 11:30 p.m., resulting in the expiration of the court’s execution warrant,” the state attorney general’s office wrote in the request for a new date. This is at least the third time Alabama has acknowledged problems with venous access during a lethal injection. The state’s July execution of Joe Nathan James took more than three hours to get underway. Alabama called off the 2018 execution of Doyle Hamm after being unable to establish an intravenous line. Republished with the permission of The Associated Press.
Kay Ivey says Alan Miller’s victims did not choose to die by bullets
Gov. Kay Ivey commented late Thursday on the cancellation of the execution of Alan Eugene Miller after a federal appeals court refused to lift an injunction on the execution. “In Alabama, we are committed to law and order and upholding justice,” Ivey said in a press release. “Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision. It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis, and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.” Alabama Department of Corrections Commissioner John Hamm visited with the victims’ families prior to updating the press after the cancellation and relayed to them the governor’s prayers and concerns. The cancellation of Miller’s execution followed a 2-to-1 decision by the 11th U.S. Circuit Court of Appeals rejection of Alabama’s attempt to proceed with Miller’s execution. Miller has asked to die from nitrogen hypoxia instead of by lethal injection. The state says that it is not prepared to use the nitrogen hypoxia method yet and is, however, capable of killing by lethal injection. The court refused to lift the injunction by federal district Judge R. Austin Haffaker Jr. on the execution preventing the state from executing Miller. Alabama Attorney General Steve Marshall has stated that the state is appealing the ruling to the U.S. Supreme Court. Miller, age 57, was convicted of murdering Holbrooks, Jarvis, and Yancey in a workplace rage attack. Miller claims that the victims were spreading rumors about him. Gov. Ivey anticipates that the execution will be rescheduled as early as possible. To connect with the author of this story, or to comment, email brandonmreporter@gmail.com.
Alabama must disclose status of nitrogen hypoxia executions
A federal judge told Alabama to stop being vague and give a firm answer by Thursday evening on if the prison system is ready to use the untested execution method of nitrogen hypoxia at an execution next week. U.S. District Judge R. Austin Huffaker, Jr. gave the state the deadline to file an affidavit or declaration, on whether the state could try to execute inmate Alan Miller by nitrogen hypoxia on September 22 if the use of lethal injection is blocked. The order came after the state dangled the possibility during a Monday court hearing of being ready to become the first state to attempt an execution with nitrogen hypoxia. Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions. It’s authorized as an execution method in three states — Alabama, Oklahoma, and Mississippi — but has never been used. The state provided “vague and imprecise statements regarding the readiness and intent to move forward with an execution on September 22, 2022, by nitrogen hypoxia,” Huffaker said. The judge asked the state Monday whether it was ready to use the method at Miller’s execution. A state attorney replied that it was “very likely” it could use nitrogen hypoxia next week but said the state prison commissioner has the final decision. “On or before September 15, 2022, at 5:00 p.m. CDT, the defendants shall file an affidavit or declaration of Commissioner John Q. Hamm, Attorney General Steve Marshall, or other appropriate official with personal knowledge, definitively setting forth whether or not the Defendants can execute the Plaintiff by nitrogen hypoxia on September 22, 2022,” the judge wrote in a Tuesday order. Miller is seeking to block his scheduled execution by lethal injection, claiming prison staff lost paperwork he returned in 2018 choosing nitrogen hypoxia as his execution method. Miller testified Monday that he is scared of needles, so he signed a form selecting nitrogen hypoxia as his execution method. He said he left the form in his cell door tray for a prison officer to pick up. The state said there is no evidence to corroborate his claim. Miller, a delivery truck driver, was convicted in the 1999 workplace shootings that killed Lee Holdbrooks, Scott Yancy, and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed. A defense psychiatrist said Miller suffered from severe mental illness, but his condition wasn’t bad enough to use as a basis for an insanity defense under state law. Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method, although lethal injection would remain the primary method for carrying out death sentences. State law gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. The Alabama Department of Corrections did not respond to an email seeking comment about the status of the proposed new execution method or what it would look like. The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge last year that it had completed a “system” to use nitrogen gas but did not describe it. Republished with the permission of The Associated Press.
Alabama wants executions by nitrogen hypoxia: What is it?
Alabama told a federal judge that it could soon be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence. The disclosure came Monday at a court hearing over inmate Alan Miller’s request to block his scheduled September 22 execution by lethal injection. Miller maintains that prison staff lost paperwork he returned in 2018 requesting nitrogen hypoxia, an execution method that the state has authorized but never used. U.S. District Judge R. Austin Huffaker Jr. asked whether Alabama was ready to carry out executions by nitrogen hypoxia. James Houts, a deputy state attorney general, said the method could be available as soon as next week. He said, however, that a final decision on when to use the new method would be up to Corrections Commissioner John Hamm. The Alabama Department of Corrections did not respond to an email seeking comment about the status of the proposed new execution method. Here is what is known about nitrogen hypoxia: WHAT IS NITROGEN HYPOXIA? Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions. HAS IT EVER BEEN USED? No. No state has used nitrogen hypoxia to carry out a death sentence. In 2018 Alabama became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. However, lethal injection remains the state’s primary execution method. HOW IS IT SUPPOSED TO WORK? Nitrogen makes up 78% of the air inhaled by humans and is harmless when inhaled with oxygen. The theory behind the execution method is that changing the composition of the air to 100% nitrogen would cause the inmate to pass out and then die from lack of oxygen. WHY DID STATES PROPOSE THE NEW METHOD? States began proposing nitrogen hypoxia as an alternate execution method because of difficulty obtaining lethal injection drugs and ongoing litigation over the humaneness of lethal injection. Proponents have theorized that nitrogen hypoxia would be a simpler and more humane execution method. Then-Sen. Trip Pittman, a Republican lawmaker who sponsored the 2018 legislation, theorized it would be similar to how aircraft passengers pass out when a plane depressurizes. WHAT ARE THE CONCERNS? Critics have likened the untested method to human experimentation. “It is completely untested,” said Robert Dunham, executive director of the Death Penalty Information Center. No state has publicly released a protocol describing how it would work. While proponents have theorized it would be quick and painless, Dunham noted that states once said the same thing about the electric chair. The American Veterinary Medical Association’s euthanasia guidelines say inert gas hypoxia is acceptable, under certain conditions, for the euthanasia of chickens, turkeys, and pigs but is not recommended for other mammals such as rats. HOW WOULD ALABAMA CARRY OUT AN EXECUTION BY NITROGEN HYPOXIA? Unknown. The state has released little information about the proposed method. Most of the available information has come from court proceedings. The Alabama Department of Corrections told a federal judge last year that it had completed a “system” to use nitrogen gas but did not describe it. During a September 11 court hearing, a lawyer for the state said they asked Miller if he would agree to be fitted with a mask, an indication that the state may intend to place a face mask over the inmates’ nose and mouth. WHAT’S HAPPENING IN OTHER STATES? Oklahoma, which in 2015 was the first state to approve the use of nitrogen gas for use in executions, has not finalized plans to use it. The state has resumed lethal injections. Department of Corrections emails obtained by The Associated Press show the agency’s former deputy chief of operations reached out to a manufacturer of reduced oxygen breathing units used to help train pilots on the signs and symptoms of hypoxia. The president of the company responded that she didn’t believe executions would be an appropriate use of the product and that she had concerns about potential liability. WHAT HAPPENS NEXT? Alabama is working on finalizing a protocol for using nitrogen hypoxia, Houts told the judge. The steps must be added to the existing state protocol that describes the procedures for an execution using the electric chair or lethal injection. He said Alabama’s prison commissioner has the final decision on when to allow its use. Litigation is expected if the state decides to go forward with the method. Lethal injection will remain the primary execution method in Alabama. However, when Alabama authorized nitrogen hypoxia in 2018, state law gave inmates a brief window to select it as their preferred execution method. A number of inmates selected nitrogen. Republished with the permission of The Associated Press.
Alabama nearly ready with untried execution method
Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday. James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for September 22, if the judge blocks the use of lethal injection. Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm. Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but never used. The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection. Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection. The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form. Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court. He noted the “high stakes” involved with a looming execution date but did not immediately rule on the request to block the lethal injection. When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method. Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker. “I remember the guy yelling he was going to put something in the door and would be back to pick them up,” Miller testified. He said he signed the form and placed it in the “bean hole” — the prison nickname for the cell door slot used to pass mail, food trays, and paperwork — but he did not see who collected it. Miller said he yelled that he wanted the form copied and notarized, but he did not get that. Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said. Houts, attempting to cast doubt on the inmate’s story about the form, asked him if he could describe anything about the officer who distributed the paper, but Miller said he couldn’t. “I think we are very much entitled to question his veracity,” Houts told the judge. Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said. Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia. She said Miller should be treated the same. The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy, and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed. Miller was delusional and believed the men were spreading rumors about him, including that he was gay, testimony showed. A defense psychiatrist said Miller suffered from severe mental illness, but his condition wasn’t bad enough to use as a basis for an insanity defense under state law. Republished with the permission of The Associated Press.
State opposes lawsuit to block execution of Alan Eugene Miller
The state asked a federal judge to dismiss a lawsuit filed by an Alabama inmate who is trying to halt his lethal injection later this month by arguing officials lost paperwork in which he selected an alternate execution method. The lawsuit by Alan Eugene Miller, who was convicted of killing three men in a workplace shooting in 1999, does not state a claim a judge could use to block the execution, set for September 22, Attorney General Steve Marshall argued in a request filed Wednesday. U.S. District Judge Austin Huffaker, in an order Thursday, gave the inmate until Monday to explain why Marshall’s motion shouldn’t be granted. In the meantime, the defense asked for a preliminary court order blocking Miller’s execution by lethal injection. Miller, a delivery truck driver, was convicted in a rampage that killed Lee Holdbrooks, Scott Yancy, and Terry Jarvis in Shelby County, south of Birmingham. Testimony indicated Miller was delusional and believed the men were spreading rumors about him, including that he was gay. While lethal injection is Alabama’s primary execution method, the state in 2018 approved an untried method, nitrogen hypoxia, as an alternative amid mounting questions over lethal injection. State law gave inmates a brief window of time in which to designate hypoxia as their preferred execution method. Miller signed a sworn statement saying he gave a form selecting nitrogen hypoxia to a corrections officer at Holman Prison, where the main death row is located, in mid-2018. But the state said it does not have such a document and plans to put the man to death by lethal injection. While Miller’s lawsuit names Marshall, Prison Commissioner John Hamm, Holman Warden, and Terry Raybon as defendants, the attorney general’s office argued the suit treats all three as “interchangeable cogs in the machinery of government” and should be dismissed. Miller also cited alleged problems with past lethal injections, including that of Joe Nathan James Jr., who was put to death in July in a procedure that was delayed for hours. Death penalty opponents contend the execution was botched. “The information that is publicly available to date shows that Mr. James’s body was in ‘great distress’ during the execution as executioners sliced into his skin several times to find a vein and that he suffered many ‘unusual punctures’ that do not normally appear on an executed body,” Miller’s lawyers wrote in a request filed Thursday seeking a preliminary injunction against lethal injection. The state has acknowledged that James’ execution was delayed because of difficulties establishing an intravenous line but has not specified how long it took. James was pronounced dead hours after the U.S. Supreme Court denied his request for a stay. Republished with the permission of The Associated Press.
