Miller testified that four years ago he submitted documents, choosing nitrogen hypoxia as his method of execution, and taped them into a slot in his cell door at the Correctional Facility in Holman for a correctional officer to pick them up.
On Tuesday, U.S. District Judge R. Austin Huffaker Jr. issued an injunction preventing the state from killing Miller by means other than nitrogen hypoxia after determining it was “substantially probable” that Miller “submitted a voting form in a timely manner, although the state says there is no physical record of a form.
Thursday night’s Supreme Court ruling overturned that injunction at the state’s request.
Although Alabama has approved nitrogen hypoxia as a method of execution, it has never done so, and the prison system has yet to complete procedures for its use to carry out a death sentence.
Miller was visited by family members and a lawyer on Thursday as he waited to see if his execution would go ahead. He received a meal tray consisting of meatloaf, cart steak, macaroni and fries, the prison system said.
Nitrogen hypoxia is a proposed method of execution in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. It’s legal as a method of execution in three states, but no state has attempted to kill an inmate by the untested method. Alabama officials told the judge they were working to finalize the case.
When Alabama approved nitrogen hypoxia as a method of execution in 2018, state law gave inmates a brief window to designate it as their method of execution.
“Just because the state isn’t yet ready to execute anyone by nitrogen hypoxia doesn’t mean it will harm the state or the public from appreciating Miller’s timely choice of nitrogen hypoxia.” Conversely, if an injunction is not granted, Miller will be irrevocably deprived of his choice as to how he will die — a choice the Alabama legislature has given him,” Huffaker wrote.
Prosecutors said Miller, a van driver, killed co-workers Lee Holdbrooks and Scott Yancy at a store in suburban Birmingham, then drove to shoot former supervisor Terry Jarvis at a store where Miller had previously worked . Each man was shot multiple times, and Miller was captured after a freeway chase.
Court hearings revealed that Miller believed the men were spreading rumors about him, including that he was gay. A psychiatrist hired by the defense found that Miller suffered from a serious mental illness, but also said that Miller’s condition was not serious enough to be used as the basis of an insanity defense under the state law.