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Alabama won’t lethally inject Alan Miller, may use nitrogen hypoxia

MONTGOMERY, Ala. — Alabama has officially agreed not to attempt a second lethal injection for death row inmate Alan Eugene Miller, who survived the state’s first try to execute him.

In a Monday court filing, attorneys for Miller and the state agreed that future attempts to execute Miller can only be by nitrogen hypoxia, a still unused method for which Alabama does not yet have a protocol.

Gov. Kay Ivey recently asked the attorney general’s office not to schedule executions until the state conducts a “top-to-bottom review” of its process after two consecutive failed attempts and an execution marred by a lengthy delay while setting an IV line. Kenneth Smith most recently survived the state’s attempt to execute him on Nov. 17.

Miller first sued several state officials in August, claiming that their plan to execute him by lethal injection on Sept. 22 was unconstitutional because he had opted to die by nitrogen hypoxia. He accused the state of losing a form he submitted to elect the alternative execution method during a statutory 30-day window in June 2018. Witnesses at death row at Holman Correctional Facility described a mad dash as death row inmates were given just a few days to decide how they would die.

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