Death row inmate Alan Eugene Miller has avoided a second lethal injection after surviving Alabama's first try to execute him, according to the Montgomery Advertiser. In a Monday court filing, attorneys for Miller and the state agreed that future attempts to execute Miller can only be by nitrogen hypoxia, an unused method for which Alabama does not yet have a protocol. Gov. Kay Ivey has 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 up an IV line. 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. Miller would have been the first person in U.S. history to face a second execution by lethal injection. U.S. District Judge R. Austin Huffaker on Tuesday dismissed Miller's ongoing litigation pursuant to Alabama carrying out his death sentence only by nitrogen hypoxia. Ivey approved nitrogen hypoxia as an alternative method in 2018, but it has never been used in an execution. With no other states from which to draw information, Alabama was left to develop a first-of-its-kind protocol for its use. It still hasn't finalized its protocol for a nitrogen hypoxia execution, but a state attorney previously hinted that the state was nearly ready. During a nitrogen hypoxia execution, the condemned person would be made to breathe in pure nitrogen gas, killing them as their blood-oxygen level falls. The gas would likely be delivered by a gas mask. The method was touted as a "more humane" way of killing someone, but several critics and experts disagree. U.S. Supreme Court Justice Neil Gorsuch wrote in 2019 that the evidence presented to the court indicated nitrogen hypoxia could cause more pain than lethal injection, depending on how it is administered.
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