MONTGOMERY, Alabama — Alabama’s attorney general said Monday that another nitrogen gas execution will take place in September after the state reached a settlement agreement with the inmate who is expected to be the second person executed using the new method.
Alabama and attorneys for Alan Miller, convicted of killing three men, have reached a “confidential settlement agreement” to end the litigation brought by Miller, according to a court document filed Monday. Miller’s complaint cited witness descriptions of Kenneth Smith’s execution in January with nitrogen gas as he sought to prevent the state from using the same protocol against him.
Court documents do not disclose the terms of the agreement. Miller had suggested several changes to the state’s nitrogen gas protocol, including the use of medical-grade nitrogen, having the gas flow supervised by a trained professional and the use of sedatives before the execution. Will Califf, a spokesman for Alabama Attorney General Steve Marshall, said he could not confirm whether the state had agreed to make changes to execution procedures.
“Miller reached a favorable agreement to protect his constitutional right to be free from cruel and unusual punishment,” Mara E. Klebaner, an attorney representing Miller, wrote in an email Monday night.
Marshall described the agreement as a victory for the use of nitrogen gas as an execution method. His office said it would allow Miller to be executed in September using nitrogen gas.
“The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” Marshall said in a statement.
“Miller’s lawsuit was based on media speculation that Kenneth Smith would have suffered cruel and unusual punishment in the January 2024 execution, but what the State demonstrated to Miller’s legal team has debunked that false narrative. Miller’s execution will proceed as scheduled in September.”
Marshall’s office titled a news release announcing the settlement that the attorney general “successfully defended the constitutionality” of nitrogen executions. A lawyer for Miller disputed Marshall’s assessment.
“No court has upheld the constitutionality of the State’s proposed nitrogen hypoxia execution method in Mr. Miller’s case, so the State’s claim that it “successfully argued” the “constitutionality” of that method is incorrect. By definition, a settlement agreement does not involve a determination of the merits of the underlying claim,” Klebaner wrote in an email.
The agreement was filed a day before a federal judge is scheduled to hold a hearing on Miller’s request to block his Sept. 26 execution. Klebaner said that by reaching a settlement agreement, the state avoided a public hearing in the case.
Alabama executed Smith in January, the first time he was executed using nitrogen. The new method of execution involves using a breathing mask placed over the inmate’s face to replace the air he breathes with nitrogen, causing death by lack of oxygen.
Miller’s attorneys pointed to witness descriptions that Smith suffered seizure-like spasms for several minutes during his execution. The attorneys argued that the nation’s first nitrogen execution was a “disaster” and that the state’s protocol did not deliver the quick death the state had promised a federal court.
The state argued that Smith held his breath, causing the execution to take longer than expected.
Miller, a delivery truck driver, was convicted of killing three men – Terry Jarvis, Lee Holdbrooks and Scott Yancy – in back-to-back shootings at their workplace in 1999.
Alabama had previously attempted to execute Miller by lethal injection. But the state called off the execution after it was unable to connect an IV to the 350-pound inmate. The state and Miller agreed that any further execution attempts would be done with nitrogen gas.
