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Following an unexpected announcement by the deputy Alabama attorney general that the state may use an untested execution method next week to kill an Alabama Death Row inmate, Gov. Kay Ivey declined to comment further.
Ivey, after speaking at the Mobile Chamber Tuesday morning, addressed the judicial system when asked about the state’s approach to administering nitrogen hypoxia executions.
“All of that is part of a court process right now,” Ivey said. “I will trust the courts.”
Alabama Deputy District Attorney James Houts told U.S. District Judge R. Austin Huffaker Jr. on Monday. during a hearing for Alan Eugene Miller that he must be “very cautious” in his statement but that it was “very likely” that the state could execute Miller using the nitrogen hypoxia method if the court says it cannot execute Miller by lethal injection.
Houts said the protocol “is there,” but not final, and made several references to Alabama Department of Corrections Commissioner John Hamm and Hamm’s decision to make the announcement.
Miller has contested the use of lethal injection for his execution, arguing that he requested nitrogen hypoxia during a time in June 2018 when death row inmates were allowed to choose the newly approved method as an alternative to lethal injection.
Read more: Alabama says untested nitrogen hypoxia method could be used for execution next week
The judge presented several hypothetical situations during the hearing, calling the case a “high-stakes situation.” He asked several times if he should order that Miller’s execution could proceed using nitrogen hypoxia but not lethal injection if either party wanted to appeal the ruling. “That’s really above my grade,” Houts replied.
Houts added that the state is taking the issue of using a new execution method “very seriously” and that unless Attorney General Steve Marshall and Hamm were “absolutely sure it’s time, it would not move forward.”
But, he added, “by every indication,” that time has come. “His victims didn’t want to die when he shot them,” Houts said, referring to the workplace shooting in Shelby County where Miller was convicted.
The full protocol for nitrogen hypoxia executions likely won’t be made public, Houts said. He argued that attorneys for death row inmates are not entitled to the full protocol and that the state is ready to “end the practice of (inmate) grading of (Alabama Department of Corrections) homework.” He said he welcomed questions from Miller’s legal team about their specific concerns about nitrogen hypoxia; Miller’s lawyers said they could not ask questions about a protocol they had not yet seen.
In response to the same question from the judge about a possible appeal of the hypothetical ruling, Miller’s attorney Mara Klebaner said, “it doesn’t sound like (the state) is ready.”
She said Miller “did not agree to be experimented on” under “a hasty basis,” adding that Miller simply wants to be treated like other inmates who chose nitrogen hypoxia as their preferred method of execution in June 2018.
Houts said Miller would not agree to be fitted with a gas mask last week.
The Alabama legislature passed a bill to authorize execution by nitrogen hypoxia in 2018, but the method has never been used in America. Alabama has never disclosed a protocol for how the executions would actually work. The protocol for nitrogen hypoxia executions is not before any court in Alabama at this time.
Miller, 57, is to be executed Sept. 22 at the William C. Holman Correctional Facility in Atmore for the August 1999 slayings of Lee Michael Holdbrooks, Christopher Scott Yancy and Terry Lee Jarvis.
Read more: Alabama botched ‘random’ process to let death row inmates choose execution method, lawsuits say
AL.com reporter John Sharp contributed to this report.
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