Alabama is preparing to use a new execution method to carry out a death sentence as early as next week.
The method, called nitrogen hypoxia, causes death by replacing the inmate’s oxygen with nitrogen. The Alabama legislature approved the method in 2018, but it has not yet been used or tested, reports NPR.
James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, which is currently set for September 22. The final decision on whether to use the new method is up to the Alabama Corrections Commissioner.
Miller is scheduled to be executed by lethal injection, but he maintains that he requested nitrogen as his execution method rather than lethal injection. The Alabama attorney general’s office argued there is no evidence that Miller submitted the paperwork requesting execution by nitrogen hypoxia, according to the Associated Press.
Miller testified that he dislikes needles because of painful experiences of having blood drawn. He said nitrogen gas sounded like the nitrous oxide gas used at dentists' offices, which seemed preferable to lethal injection. “I did not want to be stabbed with a needle,” Miller told the court.
Prosecutors argued Miller was trying to delay his execution. Houts told the judge that the state had tried to fit Miller with a mask in preparation for execution by nitrogen, but Miller declined.
One of Miller’s attorneys, Mara Klebaner, said she does not want Miller used as a “test case” with an “untested protocol” if the state’s nitrogen hypoxia protocol is not final.
Oklahoma and Mississippi are the two other states that have authorized execution by nitrogen hypoxia. Russell Bucklew, a man incarcerated in Missouri, attempted to get approved for nitrogen hypoxia; his request was denied in a lawsuit that went to the U.S. Supreme Court. Justice Neil Gorsuch stated that the method could not be used because nitrogen hypoxia was untested and could not be properly prepared.
Miller, 57, was convicted of killing three men in a workplace shooting spree in August 1999.