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Alan Eugene Miller: Judge calls off execution of killer 'by any method other than nitrogen hypoxia'

The judge ordered Alabama that Miller cannot be executed through lethal injection and instead he would be executed by nitrogen hypoxia
UPDATED SEP 20, 2022
Alan Eugene Miller was convicted of a triple homicide more than 20 years ago (Alabama Department of Corrections)
Alan Eugene Miller was convicted of a triple homicide more than 20 years ago (Alabama Department of Corrections)

ATMORE, ALABAMA: A federal judge has called off the planned execution of Alan Eugene Miller. The judge ordered Alabama that Miller who was convicted of a triple homicide more than 20 years ago, cannot be executed through lethal injection this week and instead he would be executed by nitrogen hypoxia, to which Miller formally agreed in 2018. 

“Miller has shown, based on the evidence presented, a substantial likelihood of success on the merits... and that the balance of harms weighs in his favor. Therefore, Miller has established his entitlement to a preliminary injunction that prevents the State from executing him by any method other than nitrogen hypoxia,” US District Judge R Austin Huffaker Jr wrote in his Monday order, according to


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The judge said in his order, “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),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in. He added, “it is substantially likely that Miller timely elected nitrogen hypoxia” and said several of the state’s arguments “miss the mark.” 

The judge also added that Miller, not dying by his choice of method would be “the loss of his ‘final dignity’—to choose how he will die.” The order could be appealed to the U.S. Eleventh Circuit Court of Appeals by the Alabama Attorney General’s Office. The process of execution cannot proceed if a higher court does not revoke Huffaker’s ruling, for the state only has the arrangements to use lethal injections. 

The 57-year-old convict on Thursday at 6 pm at William C Holman Correctional Facility in Atmore by lethal injection. His present lawsuit fuels by claims he made saying he turned in a form electing to die by nitrogen hypoxia after the method was approved in June 2018. However, according to the AG's office, there is doubt over the fact that Miller ever completed or submitted a form making that choice as there is no such evidence. 

“Having listened to Miller’s live testimony and observed his demeanor, and having compared Miller’s live testimony with his deposition and affidavit, and with no direct contradicting evidence... the Court finds substantially credible Miller’s testimony that he timely submitted a nitrogen hypoxia election form,” the judge wrote. Although several states in the United States have legalized execution through nitrogen hypoxia, no state has implemented it till now. ADOC Commissioner John Hamm said in an affidavit that Alabama is currently not ready to carry out such an execution. This admission comes just days after  Deputy Alabama Attorney General James Houts said that it was “very likely” the state could execute Miller this week using nitrogen hypoxia if the court agrees the change the change of method to be absolutely necessary. The judge said the AG’s Office made “vague and imprecise statements regarding the readiness and intent to move forward with an execution,” and ordered the state to take a definite stance on their readiness. Hamm’s affidavit was filed after his order. 

Huffaker wrote in his Monday order that the state has been “inconsistent” with its claims. “Suffice it to say, the readiness of the protocol and of the ADOC to conduct executions by nitrogen hypoxia has been a moving target,” he wrote. “In this case specifically, the Court has received inconsistent information along the way from the State... The Court notes that while nitrogen hypoxia may not be available on September 22, 2022, the State has not said when it expects the protocol to be ready. From all that appears, the State intends to announce its readiness to conduct executions by nitrogen hypoxia in the upcoming weeks.” Hamm said in his affidavit, “The ADOC cannot carry out an execution by nitrogen hypoxia on September 22, 2022,” adding the department “remains ready to carry out (Miller’s) sentence by lethal injection.”