Alabama’s second nitrogen gas execution follows what critics call an “insistence on secrecy” by corrections officials

Toward the end of June 2018, condemned inmates at Holman Correctional Facility in southern Alabama received slips of paper that gave them the choice to decide how they would prefer to die. There were two options: lethal injection, the default method, which Alabama had been accused of botching in the prison’s execution chamber; and nitrogen hypoxia, an experimental alternative that the state, facing political pressure to carry out death sentences despite a tally of mistakes, had recently authorized.

“Pursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather than by lethal injection,” read the first line of a printed form delivered to the men incarcerated in Holman’s death row unit, which at the time housed around 140 inmates in stacked cell blocks.

Prompts at the bottom of the page left space for recipients to add their names, signatures and the date. Legally, all inmates sentenced to death in Alabama were allowed until June 30 that year, 30 days from the date its nitrogen hypoxia law took effect, to select the new method for their own executions. The inmates would then submit those elections in writing to the former prison warden, Cynthia Stewart-Riley.

Those condemned at Holman likely had less than a week to meet the deadline, said Stewart-Riley and other prison officials in depositions several years later. Nothing was known back then about nitrogen hypoxia — where an inmate is fed nitrogen gas through a face mask until they suffocate — and Alabama officials would not release an execution protocol for five more years. When they did, so much was redacted from the public version that it was almost impossible to understand how such an execution worked.

Opting into the state’s elusive nitrogen program, untold as it was on June 30, 2018, meant hopefully opting out of the possibility of a botched lethal injection for at least eight inmates at Holman who chose nitrogen hypoxia from the outset. That list had grown to at least 21 by December of last year, according to a court filing for Alan Eugene Miller, who is set to become the second person in the U.S. and the known world executed by nitrogen hypoxia later today. 

CBS News contacted the Alabama Department of Corrections multiple times with questions and requests for comment but has not received a response.  

Miller’s is one of five executions scheduled to take place within the span of a week in five different states, which is uncommon at a time in history where death sentences and executions are generally on the decline. The first was in South Carolina, ending an execution hiatus for the state that lasted more than a decade. There were two on Tuesday, one in Texas and another in Missouri, where Marcellus Williams died despite recent revelations about his case that cast doubt on whether he received a fair criminal trial. Another execution was carried out in Oklahoma today.

Miller, 59, was convicted in a bloody triple murder that shook the community of Pelham, a suburb near Birmingham, in 1999. The district attorney in Miller’s case characterized Miller’s actions as cold, calculated and especially heinous as the prosecution pursued the death penalty.

Miller is among the vast majority of inmates on Alabama’s death row whose jurors did not unanimously recommend a death sentence — roughly 80%, according to the Equal Justice Initiative, a Montgomery-based nonprofit. Only Florida and Alabama allow divided juries to impose death sentences.

Most of the remaining 20% were condemned by judicial override, a practice now banned in every U.S. state that once allowed judges presiding over capital cases to sentence defendants to death when their juries recommended against it. CBS News identified at least 30 inmates on death row whose jurors voted to sentence them to life imprisonment without parole.

Alabama was last in the country to outlaw judicial override in 2017, a decision its critics viewed as an overdue and potentially vital departure from an aged practice rooted in racism and tyranny, which, research suggests, had an outsize impact on the number of death sentences served in the state. Alabama has the highest rate of death sentences per capita in America, in addition to one of the highest execution rates.

Outlawing judicial override did not alter sentences retroactively, including for Kenny Smith, who was the first person to die by nitrogen hypoxia earlier this year, drawing international outcry.

The term “nitrogen hypoxia” started to emerge in state legislation in 2015, when Oklahoma authorized it as an execution method after a botched lethal injection prompted its public safety department to conduct an extensive probe of the incident and the state corrections office. At the time, states that still practiced the death penalty struggled as their lethal drug suppliers, not wanting to be associated with executions, cut ties and corrections offices experimented with untried methods.

Mississippi was next to authorize executions by nitrogen hypoxia in 2017. After Smith’s execution, Louisiana authorized it in March and legislatures in Ohio and Nebraska positioned themselves to do the same.

“Insistence on secrecy”

Alabama is the only state that has developed a protocol for nitrogen gas. Lawmakers had introduced it as a more “humane” substitute for lethal injections that would not require officers to insert an IV line and was sure to cause unconsciousness almost immediately followed by death shortly thereafter. But Smith’s January execution was described as prolonged, horrific and torturous by some witnesses, including journalists, who said he writhed and thrashed for several minutes on the gurney once the nitrogen system switched on. 

At a media briefing once he was pronounced dead, Alabama Corrections Commissioner John Hamm called the execution “textbook,” even though it had never been done. 

His comments echoed those of commissioners past after executions that appeared brutal and disorganized. In Alabama, anything that may happen in the death chamber is hard to prove. After a series of botched lethal injections in 2022, Gov. Kay Ivey paused executions and ordered the corrections department to conduct an internal review of its procedures, which lasted three months. Any changes made to the lethal injection protocol were not documented publicly.

“This insistence on secrecy and the refusal to answer serious questions and concerns about the use of the protocol, is a major problem. It’s inconsistent with a democracy which values this kind of transparency and accountability from its elected officials,” Robin Maher, the executive director of the Death Penalty Information Center, told CBS News. The center is a nonprofit organization that does not take a position on capital punishment. It focuses on how executions are carried out.

CBS News has reviewed court documents related to nitrogen hypoxia in Alabama and its application in capital punishment cases.

Prosecutors have fought in litigation to conceal many details about Alabama’s execution protocols. Death row inmates can petition the courts to rule against the type of execution they will face, but they cannot see the documentation that governs how it will be carried out. Sometimes, even their attorneys are not granted access to those documents without entering into a protective order with the state that requires confidentiality for the duration of the case and after it closes. CBS News contacted nine attorneys representing Alabama inmates involved in nitrogen hypoxia litigation for this story and did not receive replies.

Alabama defends method of execution

Attorneys for the state of Alabama have repeatedly defended its protocol by citing reports on assisted suicides in Europe and records from the Occupational Safety and Health Administration detailing industrial workplace accidents. They have also cited at least one study conducted by a retired military commander in the United Kingdom in 1961 that observed the effects of pure nitrogen inhalation on a group of volunteers.

“Even when there’s public accounting through witnesses of things going wrong with these executions, and troubling facts that emerge about how things were administered, like with the Kenny Smith execution, the state is asserting that things are perfect,” said Randy Susskin, the deputy director of the Equal Justice Initiative. “And so, I think one of the issues is an unwillingness to even acknowledge that there’s something potentially problematic about the way things have gone.”

Alabama has not produced any records of Smith’s execution. Hamm said the inmate did not lose consciousness right away because he was holding his breath, but skeptics questioned whether something else had wrong. If Smith’s face mask was fitted improperly or dislodged for another reason, small amounts of oxygen may have entered the chamber and drawn out the process of suffocation. 

“Some people might say, why does that matter? This is a person who’s been condemned to die,” Maher said. “But it does matter because the Constitution is there to protect against the overreach and abuses of government, and in particular, the ways in which it punishes people. So they do have a constitutional right not to be tortured to death. We don’t believe in that in this country.”

Alabama’s most substantive response to constitutional challenges this year were affidavits recounting Smith’s execution as well as the “simulated” nitrogen hypoxia procedures performed in training before he was put to death. The execution captain said Smith’s blood oxygen levels remained high at the start of the execution before dropping off dramatically several minutes in. The assistant attorney general swore she felt no discomfort during a simulation where officers strapped her to the gurney and fitted her for a mask, while oxygen flowed.

“Smith said nothing about any pain to his spiritual advisor, to whom he was speaking moments prior,” the state said in one court filing that referenced some of those affidavits. “It would be quite odd for a person to remain completely silent during agonizing pain for several minutes, but it is not odd for a person who is holding his breath to refrain from speaking or yelling.”

Whether it would have been possible for Smith to scream, yell, grunt or address his spiritual adviser while inhaling the nitrogen gas designed to suffocate him is unknown. That quote from the state’s court filing came from a document sent to CBS News by Amanda Priest, a spokesperson for Attorney General Steve Marshall, in response to questions about the nitrogen protocol, how it was tested and the secrecy surrounding the process.

“We will let the briefs and public documents speak for themselves,” Priest said when she emailed the document. 

In Miller’s earlier suit, which ended in a confidential settlement, his attorneys argued that executing him with the same protocol used for Smith would violate Miller’s rights as it was likely to cause unconstitutional suffering. Prosecutors for the state said his concerns were “speculative” and Miller had no evidence to prove his claims. They also denied his team’s discovery requests for copies of the unredacted nitrogen gas protocol and a record from Smith’s execution.