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Judge blocks Thursday’s execution by injecting deadly drug into Alabama death row inmate who says he asked to die from nitrogen deficiency



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A federal judge issued an injunction barring Alabama from executing a death row inmate by lethal injection this week after he asserted that he chose to die by hypoxic nitrogen – a method of execution that has yet to be executed. tested and unproven. Alabama officials say they are not ready for use.

Without a warrant, inmate Alan Eugene Miller would “potentially suffer irreversible injury,” said U.S. District Judge Austin Huffaker Jr. wrote at his behest, “for he shall be deprived of the ability to die by the method of his choice and shall instead be forced to die by a method which he seeks to avoid and which he It’s going to be very painful.”

As a result, the state could not execute Miller “by any means other than nitrous oxide reduction until a court order is obtained.”

The case brought attention to nitrogen hypoxia, which experts and critics say has yet to be proven humane or effective and can never be tested ethically, although Proponents claim that it can be simpler, easier and safer than lethal injections. Robert Dunham, executive director of the Death Penalty Information Center, said prisoners like Miller were making an “uninformed choice”.

The judge’s order on Monday came after Miller – sentenced to death for triple murder in 1999 – sued the commissioner of the Alabama Department of Corrections, the state attorney general and his superintendent, alleging forced corrections officials who proceeded to execute him by lethal injection after losing his papers in a case he claimed to have chosen to die by breathing nitrogen gas.

Miller’s complaint alleges that failure to honor his request violated his constitutional rights.

State officials suggested Miller had no such option and said they had no record of his preferences, court records show.

The case attracted widespread attention after a Department of Corrections attorney last week said it was “very likely” that the state could proceed with Miller’s death by nitrous oxide, which theoretically involves the vital replacement of oxygen in the air with nitrogen until the prisoner breathes. 100% nitrogen.

The remarkable claim – although “vague and inaccurate”, according to the judge – comes more than four years after Alabama authorized the method as an alternative to lethal injection, remains the the main executive branch for the federal government of the United States and 27 states are still subject to the death penalty.

Only two other states – Oklahoma and Mississippi – have approved the use of hypoxic nitrogen for executions, but none have actually used it yet.

However, days after Alabama made the request, its chief regulator brought it back. The state “was unable to carry out execution due to hypoxia,” Commissioner John Hamm wrote in the court filing, but remained “ready to execute Plaintiff’s sentence by lethal injection on May 22. 9 in 2022.”

That led to a judge’s order Monday, which appears to force the state to implement a nitrogen hypoxia process before proceeding with Miller’s execution. It’s not clear when that might be ready.

“Suffice it to say,” the judge wrote, “the willingness of the protocol and of (the Regulatory Bureau) to conduct nitrogen hypoxia executions is already a moving target.”

The department has “completed much of the preparatory work required to conduct nitrous oxide-anoxic executions,” but the department’s process “is not yet complete,” it told CNN last week in a statement. declare. “Once the nitrous hypoxia treatment procedure is complete, (department) personnel will need sufficient time to receive thorough training before they can proceed with treatment with this method.”

The sun sets in January behind the Holman Correctional Facility, where Alabama death row inmates are held.

Proponents of nitrogen executions claim it can be simpler, easier and safer than lethal injection. And those claims sound compelling, considering the states’ continuing problems take drugs to inject lethal and with recent executions deemed a violation, either because a prisoner suffered hard or because the procedure has deviated from the prescribed procedure of the officials.

But critics and experts refute those arguments, saying there is no evidence that nitrous oxide execution would follow the prisoner’s constitutional protection against cruel and inhuman punishment. often because it has never been used and can never be ethically tested.

“There can be no legitimate research. There’s no way you can design an ethical research project… There will never be a human study. It has no medical reason to be conducted and will never pass any form of ethical scrutiny for it, said Dr. allow that to happen.

“It’s all fake, conjecture. It’s all unknown,” he told CNN. “They cannot test it ethically. They’re just going to try it… and then they’ll decide if they think they’ve killed someone and if it’s cruel.”

And yet, inmates like Miller are opting for the unproven method out of concern about how much pain they might experience when injecting lethal drugs, says Dunham, of the Death Penalty Information Center, “They’re choosing a method that they hope won’t be crooked to a method they’re sure will be torture,” told CNN. ”

None of the three countries that have approved nitrogen hypoxia as a method of implementation have yet to publicly publish a protocol outlining how it works. In addition to oxygen, about 78% of the air on Earth is made up of nitrogen; In theory, a nitrogen execution would involve replacing the oxygen in the air with nitrogen until the prisoner suffocated in what advocates describe as a painless death.

The gas can be delivered in a chamber or through a mask, Dunham said, which describes itself as an organization that does not take a stance on the death penalty but has criticized the way it is administered.

The Alabama state legislator, who sponsored a 2018 bill to authorize nitrous oxide reduction as an enforcement method believes it would be more humane than lethal injection, he told AL.com at the time. Oklahoma officials made similar statements that same year when they announced their intention to move forward with executions by lack of nitrogen oxygen or inhalation of inert gas.

One week before the announcement, Alabama rescinds Doyle Hamm’s execution after he was punctured 11 times in a failed attempt to insert an intravenous line. Joe Allbaugh, the director of the Oklahoma Department of Corrections at the time, said it was “inhumane.”

With the new methods, “after a few breaths, the person is unconscious, feeling nothing,” he claims.

But that’s just speculation, Zivot said.

While there are known cases of people dying from inhaling too much nitrogen — Zivot points to accidental deaths in industrial settings and suicides — an execution is different, he said. It’s not known what it feels like to die from breathing nitrogen, and it’s not clear what such death would look like or whether it would be subject to Eighth Amendment protections from “cruel and unusual punishments”. .

“Can nitrogen gas kill people? Yes,” he said. “So does a big rock… I understand how the chemistry of nitrogen gas can kill people. But whether nitrogen gas can kill people and is consistent with the Constitution is unknown.”

Even without a full official picture of what nitrogen hypoxia would look like, says Dunham, Alabama inmates like Miller may choose it because of the obvious risks associated with the injection. cause death.

“The rate of being tortured to death by lethal injection is quite large. Dunham told CNN. “I think it’s an option to avoid a certain bad, as opposed to an affirmative embrace of nitrogen hypoxia.”

In their complaint, Miller and his attorneys pointed to two such cases in Alabama: The first was that of Hamm, and the second was that of Hamm. July execution of Joe Nathan Jameswas widely criticized, especially after a report on the Atlantic Ocean said a separate autopsy showed James ‘had “had to go through a long death.”

The execution team “strictly followed the established process” for James’ death, which took place after three hours, a Department of Corrections spokesman said. previously told the Montgomery Advertiser: “The protocol states that if the veins are not accessible to the venous line, the team will perform a central line procedure. Fortunately, this was not necessary and with the appropriate time, intravenous access was established. ”

Zivot, who told CNN he witnessed James’ private autopsy, said the state “tortured him for three hours”, cutting into his skin to try to find veins to intravenous access – this is not part of Alabama’s lethal injection procedure.

Dunham said that executions like these on death row could hopefully be avoided by opting for nitrogen hypoxia. Indeed, the claims states have made about reducing nitrous oxide are fast, effective and “relatively painless,” he said, echoing the arguments the states made about electric chairs and lethal injections. Deadly, first used by Texas in 1982.

“They believe it,” Dunham said of nitrogen hypoxia advocates. “There is no question about that. And they may be right. But they could also be wrong, and we won’t know the answer until and when the nitrogen gas killings take place.”

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