MONTGOMERY — A convicted murderer’s execution set for September will proceed as scheduled after Alabama Attorney General Steve Marshall was able to prove the constitutionality of capital punishment through nitrogen hypoxia.
Allan Miller, 59, has been on death row for two decades for three “execution style” murders Aug. 5, 1999. At the time, the sentencing court called Miller’s crimes “calculated, premeditated and callous, with utter disregard of human life.”
It also declared that “the taking of these lives was among the worst in the memory of this Court and was well beyond the level” required for capital punishment. The victims were Lee Holdbrooks, Scott Yancey, and Terry Lee Jarvis.
In 2022, Miller challenged the method of execution after originally suing the state to ensure that he would be killed by nitrogen hypoxia. Miller’s suit led Marshall to prove that the method of execution was indeed lawful. After reviewing key documents and deposing the State’s witnesses, Miller eventually agreed to settle with the State. Terms of the settlement remain confidential, but the result will be the dismissal of Miller’s lawsuit with prejudice.
“The resolution of this case confirms that Alabama’s nitrogen hypoxia system is reliable and humane,” said Marshall. “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. Miller’s execution will go forward as planned in September.”
Miller sued the state to fight being executed by nitrogen hypoxia after the first execution using the gas was, according to some, botched. Marshall’s office firmly disagreed.
“His speculative complaint relied on news reports, an unsworn statement by Kenneth Smith’s lawyer, and hyperbolic claims by Smith’s spiritual advisor that Smith appeared to be in discomfort during his execution,” read a statement. “In its briefing, the State responded that Smith held his breath; much of the reporting wrongly attributed Smith’s early movements to nitrogen gas.
“As Smith’s own expert, Dr. Phillip Nitschke, explained: If Smith had ‘taken deep breaths … he would, almost certainly, have lost consciousness and died much sooner’ than he did. Other eyewitnesses, including Mrs. Sennett’s son, Mike Sennett, agreed that Smith seemed to be holding his breath.”
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