Alabama’s attorney general said Monday that the state has made a settlement with the prisoner who will be the second person to be put to death using nitrogen gas. This means that the execution will happen in September.
A court document filed Monday says Alabama and Alan Miller’s lawyers have reached a “confidential settlement agreement” to end the lawsuit Miller filed. Miller was found guilty of killing three men. Miller’s case used witness accounts of how Kenneth Smith was put to sleep with nitrogen gas in January to try to stop the state from using the same method on him.
The agreement’s terms were not shown in the court papers. Miller suggested a number of changes to the state’s nitrogen gas procedure, such as using medical-grade nitrogen, having a trained professional watch over the flow of gas, and giving the person a sedative before they were put to sleep. A spokeswoman for Alabama Attorney General Steve Marshall, Will Califf, said he couldn’t say for sure if the state had agreed to change how executions are done.
“Miller agreed to a settlement on good terms to protect his constitutional right to be free from cruel and unusual punishments,” Miller’s lawyer, Mara E. Klebaner, wrote in an email Monday night.
Marshall said that the deal was a win for using nitrogen gas as a way to kill people. His boss told him that Miller could be put to death with nitrogen gas in September.
“The outcome of this case shows that Alabama’s nitrogen hypoxia system works and treats animals with respect,” Marshall said in a statement.
“Miller’s complaint was based on rumors in the media that Kenneth Smith was cruelly and unusually punished in his execution in January 2024. However, what the state showed Miller’s lawyers disproved that lie.” Miller will be put to death in September as planned.
In a press statement about the settlement, Marshall’s office said that the attorney general “successfully defends constitutionality” of nitrogen executions. Marshall’s opinion was questioned by Miller’s lawyer.
There was no court that upheld the constitutionality of the state’s suggested nitrogen hypoxia method of execution in Mr. Miller’s case. This means that the state’s claim that it “successfully defended” the “constitutionality” of that method is false. According to the terms of the settlement deal, there is no decision on the validity of the original claim. Klebaner wrote this in an email.
The settlement was turned in one day before a meeting in which Miller asked a federal judge to stop his execution on September 26. Klebaner said that the state cut short a public hearing in the case by agreeing to a deal.
Smith was put to death in Alabama in January, in the first execution using nitrogen gas. With the new method of execution, a respirator mask is put over the prisoner’s face to replace the air they breathe with nitrogen gas. The person dies of lack of oxygen.
Miller’s lawyers used witness accounts to show that Smith was shaking in seizure-like fits for several minutes during his execution. Lawyers said that the first nitrogen execution in the country was a “disaster” and that the state’s procedures did not provide the quick death that the state told a federal court it would.
The state said that Smith had held his breath, which made the execution take longer than planned.
Miller was found guilty of killing three men at work in 1999: Terry Jarvis, Lee Holdbrooks, and Scott Yancy. Miller was a delivery truck driver.
Alabama had tried to put Miller to death by lethal injection before. However, the execution was put on hold because the state couldn’t connect an IV line to the 351-pound prisoner. Miller and the state decided that nitrogen gas would be used for any other attempt to put Miller to death.
