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Alabama is ready to use an untried execution method called nitrogen hypoxia as early as later this month with the execution of Alan Eugene Miller.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method will be available for the execution of Miller, which is scheduled for September 22 by lethal injection.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states, Mississippi and Oklahoma. To date the execution method has never been used in any state.

Alan Miller was convicted of a triple killing in 1999 for the workplace shootings of Lee Holdbrooks, Scott Yancy, and Terry Jarvis. Testimony showed that Miller was delusional and believed the men were spreading rumors about him, including that he was gay. A defense psychiatrist said Miller suffered from severe mental illness but his condition wasn’t bad enough to use as a basis for an insanity defense under state law.

Miller requested nitrogen hypoxia as his execution method years ago, but claims that prison staff lost his paperwork. Miller’s lawyers said they need more information about the nitrogen hypoxia process before agreeing to it, and don’t want Miller to be the test case for an untried execution method.

Executions Disproportionately Impact Black and Brown Men

Earlier this year, South Carolina inmate Richard Moore decided he wanted his execution to be carried out by firing squad. Moore is scheduled to be the first man executed in the state in more than a decade and the fourth person to be killed by firing squad in the U.S. in half a century.

Just last week, a judge ruled in favor of South Carolina death row inmates, saying executions carried out by electrocution and firing squad violate the state’s constitution for cruel and unusual punishment.

“In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die,” Judge Jocelyn Newman wrote in the ruling. “In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

However, it can be argued the death penalty has never been about humanity and decency.

Many who advocate for the death penalty often claim that it is about justice, and bringing closure, but a recent Pew Research poll found that about six in ten (63%) say the death penalty does not deter people from committing serious crimes, and nearly eight in ten (78%) say there is some risk that an innocent person will be executed.

In the three states where nitrogen hypoxia is an approved execution method (Alabama, Mississippi, and Oklahoma), Black people account for nearly half of those on death row, a figure well over each state’s population percentage.

In Alabama, 26.8% of the population is Black yet 48% of those on death row are Black. 

In Mississippi, 38% of the population is Black yet 56% of those on death row are Black.

In Oklahoma, 7.8% of the population is Black yet 41% of those on death row are Black.

Over the past five years, the Death Penalty Information Center has researched every death sentence imposed in the U.S. in the modern era of the death penalty and catalogued the name, race, and gender of the defendant; the state and county (or federal district) of prosecution; the year each sentence was imposed; the outcome of the particular sentence; and the ultimate outcome or current status of the case. 

“After 50 years, the data show a wasteful punishment, incompetently applied and beset by arbitrary factors such as race, place, and time,” said Robert Dunham, DPIC’s Executive Director. 

“The most likely outcome of a death sentence once it is imposed is that it will be overturned. Fewer than 1.1% of counties account for half of death row. Thirty-year-old cases are coming up for execution that wouldn’t even be capitally prosecuted today,” says Dunham.

He elaborates, “And when you look behind the data, the features that best characterize executions — race of victim, vulnerable defendants, when the case was tried, and the lack of meaningful judicial process — are illegitimate bases to administer the law. The Court said America wasn’t able to administer the death penalty fairly or reliably a half century ago. The data show we still can’t do it today.” 

Key Findings from capital punishment database 

Dunham said that the census database also verifies that, “when it comes to executions, white lives matter more than Black lives.” Executions carried out over the 50 years were six times more likely to involve a white victim than only victims who were Black. 

Defendants of color were disproportionately likely to be wrongfully convicted of capital offenses, took longer to be exonerated, and comprised an overwhelming majority of the likely intellectually disabled people who continue to be executed in the U.S. despite the constitutional prohibition against that practice, according to Dunham.

The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. DPIC was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for the media, and serves as a resource to those working on this issue.

Mike Creef is a fighter for equality and justice for all. Growing up bi-racial (Jamaican-American) on the east coast allowed him to experience many different cultures and beliefs that helped give him a...