Miller testified that he submitted paperwork four years ago, choosing nitrogen hypoxia as his method of execution, and putting it in a slot in his cell door at the Holman Correctional Facility for a prison worker to retrieve.
On Tuesday, U.S. District Judge R. Austin Huffaker Jr. issued a preliminary injunction blocking the state from killing Miller by any means other than nitrogen hypoxia after it determined it was “substantially probable” that Miller “submitted a timely election form, although the state says it is not a physical record of a form.” has.”
Thursday night’s Supreme Court ruling overturned that ban at the state’s request.
Although Alabama has allowed nitrogen hypoxia as an execution method, it has never done so and the prison system has not yet finalized procedures for using it to carry out a death sentence.
Miller was visited by relatives and a lawyer on Thursday while he waited to see if his execution would go ahead. He was given a tray of meatloaf, chuckwagon steak, macaroni and French fries, according to the prison system.
Nitrogen hypoxia is a proposed method of execution that would cause death by forcing the inmate to inhale only nitrogen, depriving him or her of the oxygen needed to maintain bodily functions. It is authorized in three states as an execution method, but no state has attempted to put a prisoner to death using the untested method. Alabama officials told the judge they are working to finalize the protocol.
When Alabama approved nitrogen hypoxia as an execution method in 2018, state law gave inmates a short time to designate it as their method of execution.
“Just because the state is not yet ready to execute someone for nitrogen hypoxia does not mean it will harm the state or the public to honor Miller’s timely election of nitrogen hypoxia. By contrast, if no warrant is issued, Miller will be irrevocably deprived of his choice in how he will die — a choice given to him by the Alabama legislature,” Huffaker wrote.
Prosecutors said Miller, a truck driver, killed colleagues Lee Holdbrooks and Scott Yancy at a business in suburban Birmingham, then drove off to shoot former supervisor Terry Jarvis at a company where Miller had previously worked. Each man was shot multiple times and Miller was captured after a highway chase.
Witness statements revealed that Miller believed the men were spreading rumors about him, including that he was gay. A defense-hired psychiatrist found Miller was suffering from a serious mental illness, but also said Miller’s condition wasn’t bad enough to serve as the basis for a defense against insanity under state law.