Alabama lethal injection survivor Alan Eugene Miller seeks to stop ‘horrific’ nitrogen gas execution

Lawyers for an Alabama inmate asked a judge Friday to block the country’s second scheduled execution using nitrogen, arguing the first was a “horrific scene” that violated the sentencing ban cruel and unusual.

Alan Eugene Miller, who survived a lethal injection attempt in 2022, is scheduled to be executed on September 26 in Alabama using the new method. His lawyers argued that the first nitrogen execution in January left Kenneth Smith shaking and convulsing on a stretcher for several minutes before being put to death.

“The execution was a disaster. Several eyewitnesses reported a horrific scene, where Mr. Smith was writhing on the stretcher and foaming at the mouth. Instead of examining potential gaps in their protocol, the state shrouded it in secrecy,” his lawyers said.

Miller’s lawyers have asked a federal judge for a preliminary injunction to stop the execution from continuing, or at least require the state to change the protocol. Alabama uses an industrial-style gas mask to force an inmate to breathe pure nitrogen, depriving him of the oxygen needed to maintain bodily functions.

Miller was convicted of capital murder for killing three men in a workplace shooting in 1999. Prosecutors said Miller, a delivery truck driver, killed co-workers Lee Holdbrooks and Scott Yancy in a suburban Birmingham company, then went to shoot former supervisor Terry Jarvis at a company where Miller had previously worked.

Alabama Attorney General Steve Marshall argued in January that Smith’s execution was “textbook” and said the state would seek to carry out more death sentences using nitrogen gas. Lethal injection, however, remains the primary method of execution used by the state.

Miller had previously argued that nitrogen gas should be his method of execution. Miller was scheduled to be executed by lethal injection in 2022, but the state called off the execution after being unable to connect an IV line to the 351-pound inmate. The state agreed to never again attempt to execute Miller by lethal injection and that any execution would be carried out using nitrogen gas. At the time, the state had not developed a protocol for using nitrogen gas.

In the court filing Friday, Miller’s attorneys argued that the nitrogen protocol did not result in the rapid death the state had promised the courts. They argued that Smith instead writhed “in violent pain for several excruciating minutes.”