2.0 The Execution of Alan Eugene Miller

2.0: The Execution of Alan Eugene Miller

I. From Precedent to Practice

Kenneth Eugene Smith's execution on January 25, 2024, established nitrogen hypoxia as a legally permissible method of execution in the United States. The judicial framework---Judge Huffaker's evidentiary standards, the Eleventh Circuit's deference to state protocols and the Supreme Court's silence---created a path forward for Alabama to continue using the method. Yet Smith's execution left profound questions unanswered. The violent convulsions, the prolonged gasping, the twenty-two minutes from gas flow to death. These observable realities stood in stark contrast to the state's assurances of a quick and peaceful process. Would Alabama modify its protocol in response to what witnesses observed? Would the state acknowledge the gap between legal authorization and lived experience?

The execution of Alan Eugene Miller on September 26, 2024, provided answers to these questions---and raised new ones. Miller became the second person in history executed by nitrogen hypoxia, and his case carried unique dimensions that distinguished it from Smith's. Like Smith, who faced execution after surviving a botched lethal injection attempt, Miller had endured a failed execution attempt (in September of 2022). Then, eight months of legal and procedural uncertainty before facing the nitrogen protocol he claimed to have originally elected. Miller's execution would test whether Alabama had learned from Smith's case and whether the courts would scrutinize the method more closely now that human data existed from Smith's death.

This chapter examines Miller's path to the execution chamber, the legal battles that followed Smith's execution, the eyewitness accounts that revealed what actually occurred on September 26, 2024 and the broader implications for capital punishment in America. Where discussion of Kenneth Smith established the constitutional and legislative framework, this chapter explores how that framework operated in practice---and how the second use of nitrogen hypoxia deepened, rather than resolved, the moral and legal questions surrounding this experimental method.

II. Alan Eugene Miller: Crime, Conviction and the Road to Execution

Alan Eugene Miller's path to the execution chamber began on August 5, 1999, when he shot and killed three coworkers in Pelham, Alabama. Miller, a delivery truck driver, killed Lee Holdbrooks and Christopher Scott Yancy at one business location, then drove to another site and killed Terry Jarvis.¹ The shootings occurred at two separate locations within a short time span. Coworkers later testified that Miller believed the victims were "spreading rumors" about him, though the specific nature of these alleged rumors remained vague.²

At trial in 2000, Miller's defense presented evidence of paranoid delusions and diminished mental capacity.³ The defense argued that Miller suffered from severe mental illness that impaired his judgment and contributed to the killings. Psychiatric experts testified about Miller's delusional thinking and his belief that coworkers were conspiring against him. Despite this evidence, the jury found Miller guilty on all counts of capital murder.⁴ In a 10-2 vote, the jury recommended a death sentence, a recommendation the trial judge adopted.⁵ At the time, Alabama permitted judges to override jury recommendations for life sentences, though judicial override was later abolished in 2017. In Miller's case, however, the jury itself recommended death, so no override was necessary.

Miller's appeals consumed more than two decades, winding through state and federal courts. He raised claims of ineffective assistance of counsel, inadequate investigation of his mental illness, and violations of due process.⁶ These claims were uniformly rejected. By 2010, both the Alabama Court of Criminal Appeals and the Alabama Supreme Court had affirmed his death sentence.⁷ The U.S. Supreme Court denied certiorari in 2021, leaving Miller's execution date a matter of when, not if.⁸

III. The 2018 Nitrogen Hypoxia Election Controversy

The method of Miller's execution, not just the fact of it, became the central legal battleground. In 2018, when Alabama enacted its nitrogen hypoxia statute, prisoners were given a brief window to elect the new method as their preferred form of execution.⁹ Miller later contended that he attempted to make this election, believing nitrogen hypoxia would be more humane than lethal injection. However, Alabama Department of Corrections (ADOC) officials claimed they had no record of Miller's election.¹⁰ This administrative dispute would prove crucial. Miller wanted nitrogen, but ADOC insisted his default method remained lethal injection.

The dispute highlighted a broader problem with Alabama's nitrogen hypoxia statute. The 2018 law gave prisoners only a short window to elect the method---and then placed the burden on inmates to prove they had made the election if ADOC's records were incomplete or contested.¹¹ For Miller, this meant that despite his expressed preference for nitrogen hypoxia, the state could proceed with lethal injection based on the absence of documentation. This procedural quirk---and the refusal of the Supreme Court to stop the execution---set the stage for the traumatic events of September 2022.

IV. The Botched Lethal Injection: September 22, 2022

On September 22, 2022, Alabama attempted to execute Alan Miller by lethal injection. What followed became one of the most egregious botched executions in modern American history: a ninety-minute ordeal that exposed the violence lurking beneath the clinical facade of lethal injection protocols.

Miller was strapped to a gurney with his arms stretched over his head in what he later described as a "crucifixion position."¹² This stress position alone caused discomfort, but it was only the beginning. For approximately ninety minutes, three execution team members attempted to establish intravenous access, repeatedly puncturing Miller's arms, hands and feet with needles.¹³ Miller would later describe the pain as "excruciating."¹⁴ At one point, executioners began "slapping the skin on his neck" as they considered inserting a central line there, a procedure that would have involved piercing major blood vessels in an already traumatized man.¹⁵

When a needle was finally inserted into Miller's right foot, he reported feeling as though he had been "electrocuted," causing his "entire body to shake in the restraints."¹⁶ The execution team then tilted the gurney to an upright vertical position, leaving Miller hanging in the crucifixion posture for approximately twenty minutes while blood leaked from the multiple puncture wounds.¹⁷ No witnesses, attorneys or family members were present during this extended torture, a violation of transparency norms that raised questions about what else might have occurred behind closed doors.¹⁸

Shortly before midnight, as Miller's death warrant was about to expire, prison officials abandoned the execution attempt.¹⁹ He became one of only a handful of "execution survivors" in modern American history, joining a small group of individuals (including Kenneth Smith) who had experienced the state's machinery of death and lived to describe it.²⁰

The failed execution was not merely a procedural mishap. It was a violation of the Eighth Amendment's prohibition on cruel and unusual punishment, torture inflicted under the guise of lawful execution. Miller's attorneys immediately filed suit, arguing that another lethal injection attempt would constitute unconstitutional punishment given the trauma he had already endured.²¹ The litigation put Alabama in a difficult position. The state could not credibly claim that lethal injection was a "humane" method after subjecting Miller to ninety minutes of needle punctures.

In November 2022, Alabama reached a settlement with Miller: The state agreed never again to attempt lethal injection on him.²² Any future execution would be carried out using nitrogen hypoxia, the very method Miller claimed to have originally elected. The settlement transformed Miller from an execution survivor into an unwitting pioneer of an experimental execution method. Where Kenneth Smith had challenged nitrogen hypoxia in court and lost, Miller would become its test subject through a combination of administrative failure, botched execution and legal settlement. The irony was bitter. Miller would get the method he claimed to want, but only after enduring torture that should have ended the state's ability to execute him at all.

V. The Post-Smith Legal Landscape

Kenneth Smith's execution on January 25, 2024, fundamentally altered the legal environment surrounding nitrogen hypoxia. Before Smith, challengers could argue that the method was entirely untested and that its risks were unknown. After Smith, that argument became more complicated. Alabama could now point to Smith's execution as proof that nitrogen hypoxia "worked," that it caused death within a predictable timeframe and did so without the drug shortages and pharmaceutical litigation that plagued lethal injection.

Yet Smith's execution also provided concrete evidence of what nitrogen hypoxia looked like in practice. The violent convulsions, the prolonged gasping and the twenty-two minutes from start to death---these details became part of the evidentiary record. When Miller's attorneys challenged his upcoming nitrogen execution, they could cite specific observable data rather than theoretical risks.²³ The question was whether courts would view Smith's execution as a success---that death was achieved---or a failure---that extreme suffering was observed.

The legal framework remained the same. Glossip v. Gross and Bucklew v. Precythe required challengers to demonstrate a "substantial risk of severe pain" and to propose a feasible alternative method.²⁴ But now there was human data. Miller's litigation became a test of whether eyewitness accounts of Smith's suffering would be sufficient to meet Glossip's evidentiary burden, or whether courts would continue to defer to state assurances that the protocol was humane.

VI. Miller's Constitutional Challenge

As Alabama prepared to execute Miller using nitrogen hypoxia, his attorneys filed suit in the U.S. District Court for the Middle District of Alabama.²⁵ The complaint asserted multiple constitutional violations. First, Miller argued that nitrogen hypoxia posed a "substantial risk of severe pain" based on both expert predictions and the observable evidence from Kenneth Smith's execution.²⁶ Second, Miller contended that ADOC's continued refusal to disclose key details of the nitrogen protocol---gas flow rates, mask specifications, monitoring procedures---violated due process by preventing meaningful judicial review.²⁷ Third, Miller raised religious liberty claims, asserting that his spiritual advisor must be permitted to be present and to pray audibly during the execution.²⁸

The case relied heavily on expert affidavits from physicians and pulmonologists. The facts were plentiful. Some emphasized the anticipated pain: Nitrogen's displacement of oxygen logically produces panic for air and convulsive efforts to breathe.²⁹ Some emphasized procedural uncertainties: There is no standardized human tested protocol for nitrogen hypoxia in executions. Variability in mask fit, flow duration, and lack of continuous monitoring create substantial uncertainty regarding whether the subject will remain conscious during hypoxia.³⁰ The commonality was a consensus that this method of execution was as cruel as it was unusual.

Critically, Miller's attorneys now had Kenneth Smith's execution to reference. They pointed to witness descriptions of Smith's violent movements, the prolonged duration of observable distress and the gap between state predictions and actual outcomes.³¹ If Smith's execution represented what nitrogen hypoxia looked like when it "went as planned," Miller's attorneys argued, then the method clearly posed a substantial risk of severe suffering.

The state responded that Smith's execution demonstrated the method's effectiveness. Attorney General Steve Marshall had characterized Smith's execution as "historic" and "humane," and Alabama maintained that the observable movements were involuntary reflexes that did not indicate conscious suffering.³² The state also argued that Miller bore the burden of proving that his experience would be substantially different from Smith's---and that any proposed alternative method, such as a modified nitrogen protocol or a different execution method altogether, was not feasible within Alabama's execution system.

VII. District Court Proceedings

Following Kenneth Smith's execution in January 2024, Miller's attorneys filed an amended complaint in the U.S. District Court for the Middle District of Alabama challenging the nitrogen hypoxia protocol itself. The complaint cited witness descriptions of Smith's execution---the violent convulsions, the prolonged gasping, the twenty-two minutes from gas flow to death---as evidence that the method posed a substantial risk of severe pain in violation of the Eighth Amendment. Miller's attorneys argued that the first nitrogen execution was a "disaster" and that the state's protocol had not delivered the quick death that Alabama had promised.³³

The litigation proceeded through discovery over the following months. Miller proposed several modifications to the state's protocol, including the use of medical-grade nitrogen, trained professional supervision of gas flow and pre-execution sedation.³⁴ After dismissing most of Miller's claims, the district court allowed the case to proceed to an evidentiary hearing based on a single claim that the court found was "just barely" sufficient.³⁵ The hearing was scheduled for August 6, 2024.

The hearing never occurred. On August 5, 2024---one day before the scheduled proceeding---the parties reached a confidential settlement agreement.³⁶ The terms were not disclosed, though the result was dismissal of Miller's lawsuit with prejudice.

Attorney General Steve Marshall characterized the settlement as vindication: "The resolution of this case confirms that Alabama's nitrogen hypoxia system is reliable and humane."³⁷ He claimed that evidence presented during discovery "undermined" the "false narrative" that Smith had suffered unconstitutionally. The state argued that Smith had held his breath during his execution, which caused the process to take longer than anticipated---and that much of the media reporting had wrongly attributed Smith's early movements to the nitrogen gas itself.³⁸

Miller's attorney, Mara Klebaner, offered a different assessment: "Miller entered into a settlement on favorable terms to protect his constitutional right to be free from cruel and unusual punishments."³⁹ She emphasized a critical point that Marshall's victory narrative obscured: "No court upheld the constitutionality of the state's proposed nitrogen hypoxia method of execution in Mr. Miller's case." A settlement, she noted, "does not involve a ruling on the merits of the underlying claim."⁴⁰ By settling, the state had avoided a public hearing where the details of Smith's execution---and the adequacy of the protocol---would have been subjected to judicial scrutiny.

The settlement meant that Miller's constitutional challenge would never receive full judicial review. The questions raised by Smith's execution---whether the observable suffering constituted cruel and unusual punishment, whether the protocol's secrecy violated due process, whether the state's assurances of a "humane" death could withstand evidentiary testing---remained judicially unanswered. The legal framework established in Glossip and Bucklew continued to govern: novelty alone did not render nitrogen hypoxia unconstitutional, the burden on the condemned to prove substantial risk remained exceptionally high and courts would defer to state expertise in the absence of definitive proof of severe suffering.⁴¹ But in Miller's case, these standards were never applied. The constitutional questions were mooted by agreement, not adjudicated by the courts.

VIII. The Execution: September 26, 2024

On the evening of September 26, 2024, Alan Eugene Miller was executed by nitrogen hypoxia at Holman Correctional Facility in Atmore, Alabama. The execution proceeded despite the unresolved constitutional questions and despite the observable suffering documented in Kenneth Smith's case eight months earlier. What follows is a reconstruction based on eyewitness accounts, media reports and court filings---an attempt to document what occurred when Alabama applied its nitrogen hypoxia protocol for the second time in human history.

A. The Protocol and Official Narrative

According to the publicly available, but heavily redacted, protocol, Miller was strapped to a gurney and fitted with a full-face mask that covered his entire head.⁴² The mask was described as a full-face respirator mask that was sealed tightly to prevent oxygen infiltration. Pure nitrogen gas was then released through the mask, displacing oxygen in Miller's lungs and inducing hypoxia. State officials characterized the procedure as "humane" and "effective," repeating the assurances made before Smith's execution.⁴³

Commissioner John Q. Hamm publicly explained that "involuntary body movements as the body is depleted of oxygen ... was nothing we did not expect."⁴⁴ This statement framed the observable physical reactions as anticipated and unremarkable, a natural byproduct of oxygen deprivation rather than evidence of suffering. Attorney General Steve Marshall declared that "Miller's execution went as expected and without incident."⁴⁵ These statements constructed the official narrative: The protocol functioned as designed, the outcome was predictable and Miller's death was consistent with constitutional standards.

B. Eyewitness Accounts: The Human Reality

The accounts of those who witnessed Miller's execution tell a much different story. Multiple media witnesses, advocacy organizations and Miller's spiritual advisor described a prolonged and distressing process that bore little resemblance to the state's assurances of quick and peaceful death.

The Guardian provided the most detailed account: "Miller shook and trembled on the gurney for about two minutes with his body at times pulling against the restraints. That was followed by about six minutes of gasping for air."⁴⁶ This description established a clear temporal sequence: approximately two minutes of violent shaking and trembling, followed by approximately six minutes of labored breathing, a total of roughly eight minutes of observable physical distress before Miller appeared to lose consciousness.

"Media witnesses reported that gas appeared to start flowing into the mask fitted onto Mr. Miller's face at 6:16 p.m. He 'struggled against the restraints on the gurney, shaking and trembling for about two minutes,' ... then gasped for air for about six minutes."⁴⁷ This account corroborated The Guardian's timeline and added specific details about the timing. Gas flow began at 6:16 p.m., and the period of observable distress extended from that moment through approximately 6:24 p.m.

A local television reporter who witnessed the execution provided additional context: "At 6:18 p.m. the gas started to flow ... Miller began to take deep breaths. He lifted his head off the gurney several times and struggled against the restraints. He was trembling and shaking. Those movements continued for roughly two minutes."⁴⁸ The reporter noted that Miller's head lifting behavior---a voluntary action requiring conscious muscular control---suggested that Miller retained some level of awareness during the early phase of nitrogen exposure.

The physical observations were accompanied by emotional details that humanized the scene. "The only sound inside the viewing area was from one female witness ... who was pregnant and crying."⁴⁹ This detail captures the psychological toll on those required to witness state-sanctioned death. The pregnant witness's distress serves as a reminder that executions affect not only the condemned but also the families, journalists and officials who observe them.

C. The Spiritual Advisor's Testimony

Miller's spiritual advisor stood close enough to place "one hand extended in prayer" near Miller during the execution.⁵⁰ This proximity provided a viewing angle different from other witnesses, potentially allowing observation of facial expressions and subtle movements not visible from the witness gallery. The spiritual advisor's subsequent account contradicted the state's narrative in stark terms.

The advisor described the execution as "like waterboarding," added that there was nothing "peaceful" about what he saw."⁵¹ This language is significant. The word "waterboarding" carries legal weight with regards to torture. It represents a paradigmatic example of cruel and unusual punishment explicitly prohibited by the Eighth Amendment.⁵² The spiritual advisor's characterization, informed by physical proximity and pastoral relationship with Miller, suggested a qualitatively different experience than the state's description of anticipated involuntary movements.

The advisor's account also provided insight into Miller's final moments that clinical descriptions cannot capture. Having spent time with Miller in the hours before the execution, the spiritual advisor understood Miller's mental and emotional state. The observation that the execution was "torture" reflected not just what was seen but also what was known about Miller as a person: his fears, his faith, his humanity. This perspective complicates the state's attempts to reduce Miller's death to a series of physiological responses divorced from conscious experience.

D. Comparative Analysis: Smith vs. Miller

The similarities between Kenneth Smith's and Alan Miller's executions are striking. Both involved prolonged periods of observable distress: over eight minutes for Smith from gas flow and nearly eight minutes of visible struggle for Miller before apparent loss of consciousness. Both featured violent physical reactions: Smith's convulsions and writhing, Miller's shaking and gasping. Both prompted witness descriptions that used language of suffering rather than peaceful passage: Smith's execution was described as involving "violent" movements that caused the gurney to move; Miller's was characterized as "torture by suffocation."

Yet there were also differences. Miller's execution appeared shorter in total duration, though precise timing remains unclear due to the lack of official disclosure about when death was pronounced. The specific physical manifestations differed slightly. Smith was described as "writhing" and experiencing "seizure-like" movements, while Miller's account emphasized "trembling," "shaking," and "gasping for air." Whether these differences reflected variations in individual physiology, modifications to the protocol after Smith's execution or simply differences in witness observation remains unknown.

What is clear is that both executions failed to match the state's predictions of a rapid peaceful death. In both cases, witnesses observed extended periods of physical distress that suggested conscious suffering. And in both cases, the state maintained that the executions "went as planned" despite observable evidence to the contrary.

E. The Constitutional Implications

The eyewitness accounts from Miller's execution raise profound Eighth Amendment questions. Under Glossip v. Gross and Bucklew v. Precythe, the core issue is whether the method creates a "substantial risk of severe pain."⁵³ The observable data---two minutes of violent shaking and trembling, six minutes of gasping for air, head-lifting behavior indicating possible consciousness and the spiritual advisor's characterization of the experience as "torture"---all suggest that Miller experienced significant distress.

The state's counterargument relies on the distinction between conscious suffering and involuntary physiological responses. Commissioner Hamm's assertion that "involuntary body movements" were expected suggests that Alabama interprets the physical reactions as reflexive rather than indicative of conscious pain.⁵⁴ Under this view, Miller's movements, no matter how violent or prolonged, do not constitute Eighth Amendment violations because they occur after loss of consciousness.

But this interpretation requires accepting the state's timeline and its characterization of when unconsciousness occurred. The eyewitness accounts complicate that narrative. Miller's head lifting behavior, his apparent "struggle" against restraints and the extended period of gasping all suggest that he retained some level of awareness during at least part of the eight-minute ordeal. Without independent medical monitoring, without data showing when brain activity ceased or when Miller's subjective experience ended, the state's assurances remain unverifiable.

The problem of transparency looms large here. The heavily redacted nitrogen protocol means that crucial details remain unknown: the gas flow rate, the precise specifications of the mask seal, the procedures for monitoring consciousness and the contingency plans if the protocol fails.⁵⁵ Courts evaluating Eighth Amendment claims are asked to assess "substantial risk" based on incomplete information, accepting the state's operational assertions without access to the technical data necessary for independent verification. This structural problem---identified by scholars as places of exception where normal accountability gives way to bureaucratic secrecy---undermines meaningful constitutional review.⁵⁶

IX. Legal and Ethical Implications

A. The Paradox of Precedent

Miller's execution solidified nitrogen hypoxia as an established method within Alabama's execution system. Where Smith's case tested whether the method could pass initial constitutional scrutiny, Miller's case demonstrated that once approved, nitrogen hypoxia would face minimal additional oversight. The legal framework established in Glossip and Bucklew, requiring challengers to prove substantial risk and propose feasible alternatives, creates a high bar that becomes even more difficult to clear once a method has been used. The state can point to prior executions as evidence that the method "works," even if those executions involved observable suffering.

This creates a troubling dynamic; the more frequently a method is used, the more legally entrenched it becomes, regardless of the human experience of those executed. Each execution provides data that the state can cite as proof of feasibility, while simultaneously raising questions about whether observable distress constitutes the "substantial risk of severe pain" required for constitutional intervention. The result is a repetitive effect where experimental methods become normalized through repetition, and legal precedent insulates them from challenge even as evidence of suffering accumulates.

B. The Burden of Proof and the Limits of Evidence

Miller's case also highlights the impossible evidentiary burden placed on condemned inmates. To successfully challenge nitrogen hypoxia, Miller needed to demonstrate not just that the method posed risks, but that it posed risks substantially greater than feasible alternatives. Yet the alternatives available to him were limited: lethal injection (which had already tortured him for ninety minutes), electrocution (a method rarely used and widely considered brutal) or a modified nitrogen protocol (which Alabama deemed infeasible).

The requirement to propose alternatives effectively forces condemned inmates to choose among potentially torturous options, a dynamic Justice Sonia Sotomayor has criticized as "perverse."⁵⁷ In Miller's case, this meant that even after enduring a botched execution and despite eyewitness evidence of Smith's suffering, he could not prevent Alabama from using nitrogen hypoxia because he could not prove that another method would be substantially less painful. The legal framework thus privileges the state's interest in carrying out executions over the individual's interest in avoiding unnecessary suffering.

Moreover, the evidentiary burden requires proof "to any degree of certainty or likelihood," a standard nearly impossible to meet with experimental methods.⁵⁸ By definition, there is limited human data, no controlled studies and no way to gather evidence without conducting the execution itself. This creates a logical paradox: The method cannot be challenged without evidence that can only be obtained through its use, but once used, the existence of prior executions becomes evidence of feasibility that makes future challenges harder to sustain. Miller's case exemplifies this paradox---his attorneys cited Smith's execution as evidence of substantial risk---but courts interpreted that same execution as proof that nitrogen hypoxia was constitutionally permissible.

C. Secrecy, Transparency, and Democratic Accountability

The continued redaction of Alabama's nitrogen protocol raises fundamental questions about democratic oversight of state violence. Executions are carried out in the name of the public, authorized by laws passed by elected representatives. Yet the actual mechanics of how the state kills remain hidden behind redactions and claims of operational security. As legal scholar Deborah Denno has argued, states have turned the death chamber into a place of legal exception, where normal accountability and transparency give way to secrecy.⁵⁹

The lack of transparency has practical constitutional implications. Courts evaluating Eighth Amendment challenges need access to accurate procedural data: gas flow rates, mask specifications, monitoring protocols. When states redact these details, judicial review becomes superficial. Courts are forced to accept state assurances without the information necessary to independently verify those claims. Miller's case demonstrates this problem: Despite having data from Smith's execution, courts still lacked access to the technical specifications that would allow evaluation of whether the protocol itself was constitutionally adequate.

The secrecy also undermines public trust. When official narratives describe executions as "humane" and "without incident" while eyewitnesses report "torture by suffocation" and extended periods of visible suffering, the gap between rhetoric and reality becomes impossible to ignore. The public is asked to accept the legitimacy of capital punishment while being denied access to the information necessary to evaluate whether executions are carried out consistent with constitutional principles. This erosion of accountability threatens not just the condemned but the integrity of the justice system itself.

D. The Ethics of Experimentation

Perhaps the most troubling aspect of Miller's execution is its experimental character. Despite Smith's prior execution, nitrogen hypoxia remains a method without significant human data, controlled studies or independent scientific validation. Miller became, like Smith before him, a test subject in an ongoing experiment with state-sanctioned death. This raises profound ethical questions that extend beyond constitutional doctrine.

Human rights standards, established after World War II, require informed consent for human experimentation. While executions are not medical procedures, the use of an experimental killing method on human beings implicates similar ethical principles. Miller did not consent to be executed; the state compelled his participation. The settlement that resulted in his nitrogen execution came only after Alabama had already tortured him through a botched lethal injection, hardly a context in which meaningful consent could be obtained. The subsequent execution using an untested method compounds the ethical violation.

International human rights law provides additional perspective. The United Nations has characterized nitrogen hypoxia executions as potentially constituting torture or cruel, inhuman or degrading treatment.⁶⁰ While U.S. courts are not bound by international law, these characterizations reflect a global consensus about the ethical boundaries of state punishment. Miller's execution---carried out despite international condemnation, eyewitness accounts of Smith's suffering and the prisoner's own history of torture during a botched execution---suggests a willingness to prioritize the state's interest in carrying out death sentences over ethical considerations and human dignity.

E. Political and Cultural Context

Miller's execution must also be understood within Alabama's political landscape. The state has long been among the nation's most aggressive in pursuing executions, and its political leadership frequently invokes the death penalty as evidence of moral clarity and commitment to victims' families. Attorney General Steve Marshall's characterization of Miller's execution as proceeding "as expected and without incident" reflects this political posture: an unwillingness to acknowledge problems with the execution system even when confronted with eyewitness accounts to the contrary.⁶¹

This political context shapes how executions are carried out and defended. Admitting that nitrogen hypoxia causes suffering would undermine the state's justification for adopting the method in the first place. Acknowledging that Miller's execution involved observable distress would invite renewed litigation and potentially threaten the state's ability to continue using nitrogen hypoxia. The political incentives favor maintaining the narrative that executions are humane and efficient, regardless of the observable evidence.

The cultural dimensions are equally significant. Support for the death penalty in Alabama remains strong, and opposition to executions is often framed as prioritizing criminals over victims. This cultural context makes it politically difficult to question execution methods or to advocate for additional safeguards. Miller's case illustrates how political and cultural factors can override empirical evidence and ethical concerns. The state proceeded with his execution not because the evidence conclusively demonstrated that nitrogen hypoxia was humane, but because the political will to carry out executions outweighed concerns about the method's experimental nature and observable risks. Other states were also looking to get in on the action.^62^

X. Conclusion: The Second Death and the Limits of Law

Alan Eugene Miller's execution on September 26, 2024, marked the second use of nitrogen hypoxia in human history and the second time that eyewitness accounts contradicted the state's assurances of a quick and peaceful death. Where Kenneth Smith's execution raised questions about whether nitrogen hypoxia was constitutionally permissible, Miller's execution demonstrated that legal permissibility and humane administration are not the same thing.

Miller's journey to the execution chamber was marked by state failures at every stage: the administrative failure to properly record his nitrogen election, the torture he endured during the botched lethal injection and the subsequent use of an experimental method that caused observable suffering despite promises of a peaceful death. Each failure was followed by legal validation. Courts consistently ruled that the state could proceed, that Miller bore the burden of proving substantial risk and that procedural compliance was sufficient even when human experience suggested otherwise.

The execution itself revealed the gap between constitutional doctrine and lived reality. Miller shook and trembled for two minutes, gasped for air for six minutes and was described as "waterboarding."⁶³ Yet state officials insisted the execution went "as expected and without incident."⁶⁴ This contradiction, between what was observed and what was officially acknowledged, captures the fundamental problem with nitrogen hypoxia: The legal framework permits its use based on theoretical predictions, while the actual implementation produces suffering that courts seem unwilling or unable to recognize as constitutionally significant.

Miller's execution also exposed the limits of transparency and accountability in capital punishment. The heavily redacted protocol meant that crucial details remained secret. The lack of independent medical monitoring meant that claims about when Miller lost consciousness could not be verified. And the absence of meaningful post execution review meant that the observable suffering documented by witnesses would have no legal consequence for future executions. The system functioned exactly as designed: The state carried out the execution, courts deferred to state expertise and the constitutional questions remained unresolved despite mounting empirical evidence.

The broader significance of Miller's execution extends beyond Alabama. His case demonstrates how experimental execution methods become normalized through legal precedent and repetition, even when the human experience of those executed contradicts official assurances. It shows how the evidentiary framework established in Glossip and Bucklew creates nearly insurmountable barriers for constitutional challenges, effectively permitting states to experiment on condemned inmates without meaningful judicial oversight. And it reveals how secrecy in execution protocols undermines democratic accountability and public trust in the justice system.

Perhaps most troublingly, Miller's execution illustrates what legal scholar Austin Sarat describes as the transformation of capital punishment into "a bureaucratic procedure hidden from view and for which no one in particular takes responsibility"---state killing that divorces citizens from moral accountability.⁶⁵ The courts followed precedent, the state complied with its protocol, and the execution proceeded according to law. Yet the result was eight minutes of observable suffering inflicted on a man who had already been tortured during a botched execution attempt. The law permitted this outcome. The Constitution, as interpreted by contemporary courts, did not prevent it. And the political system that authorized nitrogen hypoxia showed no inclination to reconsider the method in light of what actually occurred when it was used.

As Alabama moves forward with additional nitrogen hypoxia executions---and as other states consider the method as well---Miller's execution serves as both precedent and warning. It demonstrates that the state can lawfully carry out experimental executions despite observable evidence of suffering, despite prior torture of the condemned and despite the absence of transparent protocols or independent monitoring. It shows that constitutional protections against cruel and unusual punishment have been narrowed to the point where they provide little meaningful constraint on how states choose to kill. And it reminds us that the search for a "humane" execution method may be less about reducing suffering than about maintaining the death penalty's legitimacy in the face of mounting evidence that the machinery of death cannot be made clinical, painless or morally defensible.

Alan Eugene Miller died on September 26, 2024, after shaking and gasping for approximately eight minutes while nitrogen gas displaced the oxygen in his lungs. His spiritual advisor called it torture. The state called it justice. The courts called it constitutional. The gap between these characterizations reveals not just disagreement about facts, but fundamental questions about the limits of state power, the meaning of human dignity, and whether the law can truly distinguish between punishment and cruelty when the state's interest in carrying out executions overrides all other considerations.

Of course, Alabama was nowhere near finished.

Endnotes

Miller v. State, 913 So. 2d 1148 (Ala. Crim. App. 2004); (see also Miller v. State (Ala. Crim. App. 2011)); Miller convicted of capital murder for killing Lee Holdbrooks, Christopher Yancy, and Terry Jarvis on Aug. 5, 1999; Murders made capital under § 13A-5-40(a)(10) (multiple murders pursuant to one scheme or course of conduct); Alabama Court of Criminal Appeals initially remanded the case on Jan. 6, 2004 for the circuit court to correct its sentencing order with specific findings regarding the "especially heinous, atrocious, or cruel" aggravating circumstance; On return from remand, the Court of Criminal Appeals affirmed Miller's capital murder conviction and death sentence at 913 So. 2d 1148; Certiorari was denied by the Alabama Supreme Court.
Ibid.
Ibid.
Ibid.
Ibid.
Miller v. Commissioner, Alabama Department. of Corr., 932 F.3d 1269 (11th Cir. 2019).
Ex parte Miller, 116 So. 3d 1140 (Ala. 2013).
Alan Eugene Miller v. Jefferson S. Dunn, Commissioner, Alabama Department of Corrections, cert. denied Oct. 4, 2021 (No. 20‑7592).
Ala. Code § 15‑18‑82.1(b)(2) (2018).
Miller v. Hamm, No. 2:22-cv-00506-RAH, Memorandum Opinion and Order Granting Preliminary Injunction (M.D. Ala. Sept. 19, 2022). The court noted that "Miller alleges that he timely made such an election in 2018, but the State cannot locate any record that he did so." In its opposition, the State "expressly argued that Miller was not substantially likely to show that he timely elected nitrogen hypoxia."
Ibid; The 2018 statute, Ala. Code § 15-18-82.1(b), granted death-row prisoners only a 30-day window to elect nitrogen hypoxia. The court found that "ADOC lacked any standardized protocol or rules regarding the collection and transmittal of inmates' completed election forms," creating circumstances where inmates bore the practical burden of proving their elections if ADOC's records were incomplete. Despite this procedural deficiency, the court concluded it was "substantially likely that Miller timely elected nitrogen hypoxia."
Equal Justice Initiative, "Alabama's Recent Botched Executions and Execution Attempts," https://eji.org/issues/alabama-botched-executions/ (documenting Sept. 22, 2022 failed execution of Alan Miller).
Ibid.
Declaration of Alan Eugene Miller, Miller v. Hamm, No. 2:22-cv-00506-RAH (M.D. Ala.), 8*;* see also Miller v. Hamm, 640 F. Supp. 3d 1220, 1228 (M.D. Ala. 2022) (Huffaker, J.) (recounting Miller's testimony that "what they were doing was excruciating"); Equal Justice Initiative, "Alabama's Recent Botched Executions and Execution Attempts," https://eji.org/issues/alabama-botched-executions.
Ibid, 9. The Nov. 2022 Huffaker opinion recounts that "Navy Scrubs then started feeling and slapping the skin on Miller's neck" as executioners considered inserting a central line. Miller v. Hamm, 640 F. Supp. 3d at 1228.
Ibid, 12. Miller testified that when a needle was inserted into his right foot, he "felt like he had been electrocuted in this foot, and his entire body shook in the restraints." Miller v. Hamm, 640 F. Supp. 3d at 1228.
Ibid, 14. The court found that "one of the guards in the execution chamber raised the execution gurney from a horizontal to a vertical position" and "Miller was left hanging vertically from the gurney, strapped in by his arms, feet, and chest" while "[b]lood was leaking from some of his wounds." Miller v. Hamm, 640 F. Supp. 3d at 1228-29; Equal Justice Initiative, supra note 14 (describing Miller "left hanging vertically in a crucifixion position---with his chest and outstretched arms strapped to the gurney---for 20 minutes").
Equal Justice Initiative, supra note 12.
Ibid.
Death Penalty Information Center, "Botched Executions," listing Alan Eugene Miller (Sept. 22, 2022), https://deathpenaltyinfo.org/executions/botched-executions.
Miller v. Hamm, No. 2:22‑cv‑00506, Complaint, 15--20 (M.D. Ala. Sept. 23, 2022).
Alabama Department of Corrections, Settlement Agreement, Miller v. Hamm, No. 2:22‑cv‑00506 (M.D. Ala. Nov. 29, 2022).
Miller v. Hamm, No. 2:22‑cv‑00506, Complaint, 21--45 (M.D. Ala. 2023). Miller's complaint raised Eighth Amendment claims based on "news reports, an unsworn statement by Kenneth Smith's lawyer, and claims by Smith's spiritual advisor that Smith appeared to be in discomfort during his execution." Alabama Attorney General's Office, Press Release, Aug. 5, 2024.
Glossip v. Gross, 576 U.S. 863, 877 (2015); Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019).
Miller v. Hamm, No. 2:22-cv-00506-RAH (M.D. Ala.). Following Kenneth Smith's January 2024 execution, Miller filed an amended complaint challenging Alabama's nitrogen hypoxia protocol. Miller's complaint "cited witness descriptions of the January execution of Kenneth Smith with nitrogen gas" and "sought to block the state from using the same protocol on him." Kim Chandler, "Alabama to Move Forward with Nitrogen Gas Execution in September After Lawsuit Settlement," Associated Press, Aug. 5, 2024. The case was settled in Aug. 2024 before a scheduled evidentiary hearing.
Ibid, Supra 23; complaint, 21--45.
Ibid, 10--15; (raising due process claims regarding ADOC's refusal to disclose unredacted protocol details).
Ibid, Motion for Preliminary Injunction, 12; Miller sought permission for his spiritual advisor to be present and pray during the execution, consistent with the Supreme Court's ruling in Ramirez v. Collier, 142 S. Ct. 1264 (2022).
Miller v. Hamm, Affidavits.
Ibid.
Miller v. Hamm, Complaint, 30--35 (citing witness accounts from Smith execution).
Steve Marshall, Statement on Execution of Kenneth Eugene Smith, Alabama Attorney General's Office, Jan. 26, 2024.
Miller v. Hamm, No. 2:22-cv-00506-RAH (M.D. Ala.). Following Kenneth Smith's January 2024 execution, Miller filed an amended complaint challenging the nitrogen hypoxia protocol. Kim Chandler, "Alabama to Move Forward with Nitrogen Gas Execution in September After Lawsuit Settlement," Associated Press, Aug. 5, 2024; The complaint "cited witness descriptions of the January execution of Kenneth Smith with nitrogen gas" as evidence that the method violated the Eighth Amendment's prohibition on cruel and unusual punishment; Miller's attorneys "argued that nation's first nitrogen execution was [a] 'disaster' and the state's protocol did not deliver the quick death that the state promised a federal court that it would."
Miller "suggested several changes to the state's nitrogen gas protocol, including the use of medical grade nitrogen, having a trained professional supervise the gas flow and the use of sedative before the execution."
Alabama Attorney General's Office, Press Release, "Alabama Attorney General Marshall Successfully Defends Constitutionality of Nitrogen Hypoxia Method of Execution," Aug. 5, 2024, https://www.alabamaag.gov/alabama-attorney-general-marshall-successfully-defends-constitutionality-of-nitrogen-hypoxia-method-of-execution/ (noting that "after dismissing most of his claims, the federal court allowed Miller to obtain discovery based a single claim that was 'just barely' sufficient to proceed").
"The settlement was filed a day before a federal judge was scheduled to hold a hearing in Miller's request to block his upcoming Sept. 26 execution." Associated Press, Aug. 5, 2024.
Alabama Attorney General's Office, Press Release, "Alabama Attorney General Marshall Successfully Defends Constitutionality of Nitrogen Hypoxia Method of Execution," Aug. 5, 2024, https://www.alabamaag.gov/alabama-attorney-general-marshall-successfully-defends-constitutionality-of-nitrogen-hypoxia-method-of-execution/ (noting that "after dismissing most of his claims, the federal court allowed Miller to obtain discovery based a single claim that was 'just barely' sufficient to proceed").
Ibid. ("Miller's complaint was based on media speculation that Kenneth Smith suffered cruel and unusual punishment in the January 2024 execution, but what the State demonstrated to Miller's legal team undermined that false narrative. ... In its briefing, the State responded that Smith held his breath; much of the reporting wrongly attributed Smith's early movements to nitrogen gas.").
Mara E. Klebaner, Statement on Settlement in Miller v. Hamm, quoted in Associated Press, Aug. 5, 2024.
Ibid. Klebaner stated: "No court upheld the constitutionality of the state's proposed nitrogen hypoxia method of execution in Mr. Miller's case, thus the state's claim that it 'successfully defend[ed]' that method's 'constitutionality' is incorrect. By definition, a settlement agreement does not involve a ruling on the merits of the underlying claim."
Glossip v. Gross, 576 U.S. 863, 877 (2015); Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019).
Alabama Department of Corrections, Nitrogen Hypoxia Protocol (redacted), 2023.
John Q. Hamm, Press Conference, Sept. 26, 2024. Hamm stated: "Just like in Smith we talked about there is going to be involuntarily body movements as the body is depleted of oxygen. So that was nothing we did not expect." Associated Press, Sept. 26, 2024; "Witnessing Alan Miller's Execution: A Firsthand Account from Alabama's Death Chamber," WVTM 13, Sept. 26, 2024, https://www.wvtm13.com/article/alan-miller-execution-alabama-witness-final-words/62415048..
Steve Marshall, Statement on Execution of Alan Miller, Alabama Attorney General's Office, Sept. 26, 2024.
"Alabama executes death-row prisoner with nitrogen gas," The Guardian, Sept. 26, 2024, https://www.theguardian.com/us-news/2024/sep/26/alabama-executes-alan-miller-nitrogen-gas"; Multiple outlets reported substantially similar observations. The Associated Press account stated Miller "shook and trembled on the gurney for about two minutes with his body at times pulling against the restraints. That was followed by about six minutes of periodic gulping breaths before he became still." Kim Chandler, "Alabama Puts Man Convicted of Killing 3 to Death in the Country's Second Nitrogen Gas Execution," Associated Press, Sept. 26, 2024.
Equal Justice Initiative, "Alabama Executes Alan Miller," Sept. 26, 2024, https://eji.org/news/alan-miller-alabama-execution-2024/.
"Witnessing Alan Miller's execution: A firsthand account from Alabama's death chamber," WVTM 13, Sept. 26, 2024, https://www.wvtm13.com/article/alan-miller-execution-alabama-witness-final-words/62415048.
Ibid.
Ibid.
Miller's spiritual advisor, Dr. John Muench, a physician, was permitted to enter the execution chamber and stand near the gurney. According to witness accounts, Muench "approached him and touched his leg, reading what appeared to be Bible verses. He also prayed over Miller." "Witnessing Alan Miller's Execution," WVTM 13, Sept. 26, 2024, https://www.wvtm13.com/article/alan-miller-execution-alabama-witness-final-words/62415048. Muench later described laying "one of his hands on Miller's left leg" to comfort him during prayer. Lauren Gill, "'Agony' and 'Suffering' as Alabama Experiments with Nitrogen Executions," Bolts Magazine (and The Intercept), Oct. 8, 2024, https://boltsmag.org/alabama-nitrogen-executions/.
Dr. John Muench, Miller's spiritual advisor, provided detailed testimony about what he witnessed. Speaking to journalists after the execution, Muench---who is also a physician---stated: "We don't see people jerking around like that while they're dying normally. His face was twisted and he looked like he was suffering." He added: "I'm sure he was suffering certainly at the beginning of it, when he was gasping for oxygen. When he lifted his head up and I could see him, he was definitely gasping." Muench compared the experience to waterboarding: "I'm sure there's video of people being waterboarded in this world and my guess is it would look very similar." He told the Associated Press: "It's certainly not a peaceful way to die." Lauren Gill, "'Agony' and 'Suffering' as Alabama Experiments with Nitrogen Executions," Bolts Magazine and The Intercept, Oct. 8, 2024, https://boltsmag.org/alabama-nitrogen-executions/; Associated Press, Mar. 6, 2025.
See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (discussing torture as paradigmatic cruel and unusual punishment).
Glossip v. Gross, 576 U.S. 863, 877 (2015); Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019).
John Q. Hamm, Press Conference, Sept. 26, 2024.
Alabama Department of Corrections, Nitrogen Hypoxia Protocol (redacted), 2023.
Deborah Denno, "Lethal Injection Chaos Post-Baze," Georgetown Law Journal (2014). https://ir.lawnet.fordham.edu/faculty_scholarship/506.
Glossip v. Gross, 576 U.S. 863 (2015) (Sotomayor, J., dissenting).
Miller v. Hamm, Order Granting Temporary Stay at 3 (M.D. Ala. Sept. 22, 2023).
Denno, supra note 56.
United Nations Human Rights Office, "UN Experts Condemn Alabama's Use of Nitrogen Gas," Jan. 27, 2024, https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-horrified-kenneth-smiths-execution-nitrogen-alabama.
Steve Marshall, Statement on Execution of Alan Miller, Sept. 26, 2024.
Mississippi Code § 99‑19‑51; Oklahoma Stat. Tit. 22 § 1014; Louisiana authorization (2024).
The advisor, Dr. John Muench, described what he witnessed in stark terms. "We don't see people jerking around like that while they're dying normally," he said. "His face was twisted and he looked like he was suffering." Muench, himself a physician, compared the scene to waterboarding: "I'm sure there's video of people being waterboarded in this world and my guess is it would look very similar." He later told the Associated Press: "It's certainly not a peaceful way to die."
Steve Marshall, Statement on Execution of Alan Miller, Sept. 26, 2024.
Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001). Sarat's central argument is that modern executions have become "a bureaucratic procedure hidden from view and for which no one in particular takes responsibility," transforming state killing into what he elsewhere calls "calm, bureaucratic bloodletting." This bureaucratization serves to obscure the violence of execution from public consciousness and diffuse moral responsibility across institutional actors---corrections officials, medical personnel, courts, governors---such that no single person bears the weight of taking a life. Sarat traces how each successive execution method, from hanging to electrocution to lethal injection, promised to sanitize and rationalize death while ultimately failing to eliminate the fundamental brutality of the act. For related analysis of how execution technologies serve to distance the state from the violence it inflicts, see also Austin Sarat, Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford: Stanford University Press, 2014); Deborah W. Denno, "The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty," Fordham Law Review 76 (2007): 49--128, https://ir.lawnet.fordham.edu/flr/vol76/iss1/3; and Timothy V. Kaufman-Osborn, From Noose to Needle: Capital Punishment and the Late Liberal State (Ann Arbor: University of Michigan Press, 2002).