Ivey, after speaking before the Mobile Chamber Tuesday morning, deferred to the legal system when asked about the state’s approach to handling hypoxia executions. “This is all part of a legal process right now,” Ivey said. “I will trust the courts.” Alabama Deputy Attorney General James Houtz told U.S. District Judge R. Austin Huffaker Jr. on Monday during a hearing for Alan Eugene Miller that he should be “very careful” in his statement, but that it is “very likely” the state will execute Miller. using the nitrogen hypoxia method if the court says it cannot execute Miller by lethal injection. Houtz said the protocol “is there,” but not final, and made several references to Alabama Department of Corrections Commissioner John Hamm and Hamm’s decision to make the announcement. Miller disputed the use of lethal injection in his execution, arguing that he requested nitrogen hypoxia during a time in June 2018 when death row inmates were allowed to choose the newly approved method as an alternative to lethal injection. Read more: Alabama says untested nitrogen hypoxia method could be used for execution next week The judge presented several hypothetical situations throughout the hearing, calling the case a “high-stakes situation.” He asked several times if he was going to order Miller’s execution, he could proceed using nitrogen hypoxia but not lethal injection if either party appealed the decision. “That’s really above my pay grade,” Houtz replied. Houtz added that the state is taking the issue of using a new execution method “very seriously” and that unless Attorney General Steve Marshall and Hamm were “absolutely confident that the time has come, it will not go forward.” But, he added, “by all indications,” the time has come. “His victims didn’t want to die when he shot them,” Houtz said, referring to the Shelby County workplace shooting where Miller was convicted. The full protocol for the nitrogen hypoxia executions likely won’t be made public, Houtz said. He argued that attorneys for death row inmates are not entitled to the full protocol and that the state is ready to “end the practice of (inmates) grading (Alabama Department of Corrections) homework.” He said he welcomed questions from Miller’s legal team about their specific concerns about nitrogen hypoxia. Miller’s lawyers said they could not ask questions about a protocol they had not yet seen. In response to the same question from the judge about a possible appeal of the hypothetical ruling, Miller’s attorney Mara Klebaner said, “it doesn’t sound like (the state) is ready.” He said Miller “did not agree to be experimented” on a “rushed basis,” adding that Miller simply wants to be treated like other inmates who chose nitrogen hypoxia as their preferred method of execution in June 2018. Houtz said Miller would not agree to be fitted with a gas mask last week. The Alabama Legislature passed a bill to authorize execution by hypoxia in nitrogen in 2018, but the method has never been used in America. Alabama has never disclosed a protocol for how the executions would actually work. The protocol for hypoxia nitrogen executions is not before any court in Alabama at this time. Miller, 57, is scheduled to be executed Sept. 22 at the William C. Holman Correctional Facility in Atmore for the August 1999 murders of Lee Michael Holdbrooks, Christopher Scott Yancy and Terry Lee Jarvis. Read more: Alabama botched ‘random’ process that lets death row inmates choose execution method, lawsuits say AL.com reporter John Sharp contributed to this report.
