On Tuesday, a federal judge said the state has until Thursday, Sept. 15, at 5 p.m. to decide.
The order, issued by U.S. District Court Judge R. Austin Huffaker, Jr., comes in the case of Alan Eugene Miller, who was convicted in the shooting death of three people in Shelby County more than two decades ago. Miller’s lawyers claim he submitted a form to prison officials opting into an execution by nitrogen hypoxia. The state denies officials received Miller’s form.
Miller is asking that his execution by lethal injection be halted by the courts.
Following a hearing on the matter earlier this week, Judge Huffaker issued an order requiring an appropriate state official, like the prisons commissioner or the attorney general, to file a sworn statement “definitively setting forth” whether the state has the ability to execute Miller by nitrogen hypoxia.
During the hearing, a lawyer for the state had said it was “very likely” that prison officials could execute Miller using the untested execution method but would not take a “firm position” on the issue, the judge said.
The judge, who was appointed by former President Donald Trump, said he issued the order “due to counsel’s vague and imprecise statements regarding the readiness and intent to move forward” with Miller’s execution via nitrogen hypoxia.
An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States. Execution through the use of nitrogen suffocation was approved by the Alabama Legislature in 2018, however, joining Oklahoma and Mississippi as the only other states to allow the practice.
Barring court action, Miller’s execution is set to take place Sep. 22 at Holman Correctional Facility in Atmore.