Alabama settles lawsuit with death row inmate set to become second executed by nitrogen gas

By Dakin Andone, CNN

(CNN) — The office of Alabama’s attorney general has settled a federal lawsuit filed by death row inmate Alan Miller over the state’s plan for him to become the second known person in the nation to be executed using nitrogen gas.

The terms of the settlement are confidential and the inmate’s lawsuit was dismissed with prejudice, meaning it cannot be brought again, court records show. Miller’s execution is set for some time between September 26 and 27.

Miller had challenged the state’s nitrogen hypoxia protocol, claiming it could cause him undue suffering, thus violating his Eighth Amendment protections against cruel and unusual punishment. His attorneys did not immediately respond to CNN’s request for comment about the settlement.

Republican Attorney General Steve Marshall, meanwhile, touted the settlement as proof Alabama’s nitrogen gas execution method – which was used for the first and only time earlier this year – is constitutional. It involves forcing an inmate to inhale 100% nitrogen gas, depriving him of the oxygen needed to survive.

“The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” Marshall said in a Monday news release. Miller’s lawsuit, he said, was “based on media speculation” the first person known to have been executed in the US by nitrogen gas, Kenneth Smith, “suffered cruel and unusual punishment” when he was put to death in January.

“(B)ut what the State demonstrated to Miller’s legal team undermined that false narrative,” Marshall said.

If Miller is put to death next month, it would be the second attempt to execute him for the 1999 fatal shootings of Terry Jarvis, Lee Holdbrooks and Scott Yancy – three people the inmate had worked with and claimed to believe were spreading rumors about him.

Prior to that initial attempt two years ago, Miller and his attorneys had fought to ensure he would be executed by nitrogen gas, a method he had previously chosen but the state was not ready to employ.

After his legal challenges failed, the execution proceeded via lethal injection. But officials were forced to call it off, at the time citing an inability to gain adequate access to Miller’s veins before his death warrant expired. According to Miller’s lawsuit, officials aborted the execution attempt after repeatedly sticking him with needles in an unsuccessful effort to set an intravenous line.

The state subsequently agreed not to execute Miller using any method other than nitrogen hypoxia.

Inmate lawsuit focused on January execution

Standing by his preference for an execution using nitrogen, Miller and his attorneys accused the state in federal court of not addressing the alleged failures illustrated by Smith’s execution and proposed several changes to the protocol, such as a change to the mask used to deliver the nitrogen. Miller – who is 351 pounds – expressed concern in a deposition earlier this summer the mask would not fit him.

“It probably won’t (fit) because I’ve got a big old head,” Miller said of the mask. “Nothing else fits my head.”

Both sides had been expected Tuesday in federal court for a hearing regarding Miller’s request for a preliminary injunction in the case, which would have forbidden the state from executing him unless it implemented those changes.

Smith’s execution was at the heart of Miller’s arguments: In the weeks before it, Smith, his attorneys and critics had raised concerns about Alabama’s protocol, which had only been made public with heavy redactions, saying it could lead to undue suffering. In court records, the state had argued the method was perhaps the most humane execution method ever and indicated the redactions were needed to maintain security.

While the state said the execution went according to plan, witnesses reported seeing Smith shaking and writhing on the gurney for minutes before dying, despite assertions by the state that death would be quick and painless. Marshall called the execution “textbook,” and the Department of Corrections Commissioner John Hamm said Smith appeared to be holding his breath –– a claim repeated in the state’s motion to dismiss Miller’s request for a preliminary injunction.

“Smith held his breath, and after he began inhaling nitrogen gas, he soon lost consciousness and died in minutes,” the response says, citing the account of the Alabama corrections captain who oversaw the execution team and experts.

Miller questioned that claim in his deposition, asking under questioning by the state, “So you’re basically telling Kenny Smith to cooperate with y’all killing him?”

“(H)ow do you know Kenny Smith was holding his breath? You have no medical professional down there watching showing he was doing like this. How could you tell?”

Miller’s complaint proposed several modifications to Alabama’s protocol that would be “feasible, readily implemented” and “significantly reduce a substantial risk of severe pain,” including using a mask that would fit Miller’s face and create an airtight seal; using a medical professional instead of corrections officers to place the mask on Miller’s face and monitor the nitrogen flow; using medical grade nitrogen; and giving Miller a sedative or tranquilizer before delivering the gas.

The defendants – Marshall and Hamm, plus GOP Gov. Kay Ivey and the prison warden – largely dismissed the proposed changes in a filing last month opposing the preliminary injunction, noting Miller had not identified an alternative mask, sedative or medical professionals willing to participate, possibly in violation of health care professionals’ codes of ethics. Additionally, the defendants noted top nitrogen gas suppliers have forbidden the use of their medical-grade nitrogen in executions, indicating it was not a feasible option.

Miller wanted the sedative to help “calm me down,” he said in his deposition.

“(T)he ways (they) said he jerked, they said he suffocated,” Miller said of Smith. “I don’t want people thinking I’m thrashing or resisting so they can all rush and then jump on me.”

However, when asked if he would cooperate with corrections officials for a mask fitting, Miller declined, saying he felt it was “immoral” and calling it “psychological terror,” though he would sit for a fitting by a neutral third party. He indicated he did not intend to hold his breath during the execution.

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