Alan Eugene Miller, 57, was scheduled to be executed Thursday night by lethal injection. Picture courtesy Alabama Department of Corrections/<a href="http://www.doc.state.al.us/InmateHistory">Website</a>
Alan Eugene Miller, 57, was scheduled to be executed Thursday night by lethal injection. Picture courtesy Alabama Department of Corrections/Website

Sept. 23 (UPI) — A divided Supreme Court ruled that the state of Alabama may proceed with its scheduled execution of Alan Eugene Miller by lethal injection on Thursday night after a lower court had sided with the death row inmate that he could only be put to death by nitrogen hypoxia.

In a 5-4 decision, the justices vacated a ruling by a federal judge that was upheld by the 11th U.S. Circuit Court of Appeals that had halted Miller’s execution by lethal injection on the grounds that it would violate his constitutional right to die by nitrogen hypoxia, which is a method of execution that deprives the brain of oxygen by forcing inmates to breath only nitrogen.

Miller’s lawyers had argued that their client had elected to die by nitrogen hypoxia in 2018 under a law that allowed inmates to choose to to be executed by the alternative method.

The Alabama Department of Corrections had told the court it had no record of Miller’s request, and that if enjoined from executing Miller by lethal injection that it was “very likely” it would be unable to carry out the inmate’s sentence by nitrogen hypoxia on the scheduled date.

No opinion from the justices was given on their decision to vacate the injunction.

Conservative Justice Amy Coney Barrett joined her liberal colleagues Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in stating they would have denied the state’s application to vacate the injunction.

The decision comes after Judge Austin Huffaker Jr. of the U.S. District Court for the Middle District of Alabama, Northern Division, ruled Monday that “Miller has established his entitlement to a preliminary injunction that prevents the State from executing him by any method other than nitrogen hypoxia.”

Huffaker, who was appointed by former President Donald Trump, found during litigation that Miller had presented “consistent, credible and uncontroverted direct evidence” that he had submitted his decision to die by the untried method in writing due to “his single-minded focus on avoiding contact with needles.”

On the other hand, Alabama only presented the court with “inconsistent information” while being unable to state when it would be able to carry out the execution by nitrogen hypoxia, Huffaker said.

The state then appealed Huffaker’s decision with the 11th U.S. Circuit Court of Appeals siding with the lower court, ruling it did not abuse its discretion by granting the injunction.

Miller was convicted of killing three people on Aug. 5, 1999.

During the trial, prosecutors said the truck driver had shot dead two people at a Pelham heating and air-conditioning distributer where he was employed before driving five miles to a specialty gas distributor that had laid him off months earlier where he shot a third person dead.

The jury deliberated for 21 minutes during his 2000 trial before convicting Miller on all three charges of capital murder.

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