Death Penalty States Beware: Nitrogen Hypoxia Is Not the Solution to America’s Long History of Inhumane Executions

Posted in: Criminal Procedure

On May 8, Alabama’s Republican Governor Kay Ivey set a date for the state’s second execution by nitrogen hypoxia. Her office announced that Alan Eugene Miller would be put to death sometime within thirty hours after 12:00 a.m. on Thursday, September 26, 2024.

The governor’s action followed a decision by the Alabama Supreme Court granting the state attorney general’s request for permission to set Miller’s execution date. Miller was convicted and sentenced to death in July 2000 for killing three men in a workplace shooting.

If Alabama goes forward with its plan, it will be Miller’s second trip to the execution chamber. His first trip, in September 2022, produced a gruesome spectacle.

As The Atlantic’s Elizabeth Bruenig describes that spectacle, for 90 minutes the execution team tried to find a usable vein to insert an IV. They “stared at, stroked, and punctured … [Miller’s] skin … —even producing a pocket flashlight to try to detect a vein visually…. Every puncture evidently failed…. Eventually, one of the men began to tap on the veins of Miller’s neck.”

“Miller recoiled sharply,” Bruenig notes, “Though the state’s protocol permits an execution team to set a central line—a venous catheter often set in the neck or groin—in the event that venous access cannot be established normally….”

The state only gave up when the time set for the execution expired. In November 2022, the state agreed that it would not use that execution method in any subsequent effort to put Miller to death.

Between then and now, Alabama carried out the first nitrogen hypoxia execution in this nation’s history, and other states now are considering following Alabama’s example. Yet they are pursuing a fool’s errand. Nitrogen hypoxia will neither end America’s long history of problems in the execution chamber nor ensure that when the state kills, it does so humanely.

Before looking at what other states are doing, let’s recall what happened the first time Alabama used nitrogen hypoxia. That effort, like the first use of other execution methods, did not go as planned. Despite promises that nitrogen would kill quickly and painlessly, media witnesses to the January execution of Kenneth Eugene Smith suggest it was anything but quick and painless.

Marty Roney of the Montgomery Advertiser reported that “Kenneth Eugene Smith appeared to convulse and shake vigorously for about four minutes after the nitrogen gas apparently began flowing through his full-face mask in Alabama’s death chamber was another 2 to 3 minutes before he appeared to lose consciousness all while gasping for air to the extent that the gurney showed several times.”

Kim Chandler of the Associated Press said that “the execution took about 22 minutes from the time between the opening and closing of the curtains to the viewing room. Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and ride on the gurney, sometimes pulling sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible.”

On the other hand, Alabama Attorney General Steve Marshall insisted that the Smith execution was a “textbook” outcome. He said nitrogen hypoxia “is no longer an untested method—it is a proven one.”

Marshall promised, “We’ll definitely have more nitrogen hypoxia executions in Alabama.” And he offered to help other states interested in adopting it.

At the time Alabama killed Smith, two other states (Mississippi and Oklahoma) also authorized nitrogen hypoxia as an execution method. Since Smith’s death, Louisiana has followed suit, while Nebraska and Ohio are considering legislation to add nitrogen to their menu of execution techniques.

In March, Louisiana Governor Jeff Landry signed into law a bill adding both electrocution and nitrogen hypoxia as execution methods, starting on July 1, 2024. At the time that legislation was first introduced, Landry alluded to Alabama’s use of nitrogen hypoxia and noted that “States around us are finding ways and methods in order to execute those who have been tried, and convicted, and sentenced to death.”

According to NBC News, “[D]ebate over the new death penalty bill … drew both support from loved ones of murder victims and pushback against capital punishment from justice reform advocates questioning the novel method of nitrogen hypoxia.” And a group of Jewish citizens of Louisiana said, “We find the use of any form of gas for state executions a violation of our ethical principles and of Judaism’s deep commitment to innate human dignity.”

Last month, the Jews Against Gassing Coalition, an organization that opposes state-sanctioned gas executions, helped persuade the Louisiana Senate Judiciary Committee to advance a bill that would undo Louisiana’s embrace of nitrogen hypoxia. As that organization explained, “[F]or Jewish people, and really anyone with knowledge of the Holocaust, the historical association with this execution method is chilling and undeniable, eliciting a visceral response that evokes not justice, your goal, but genocide.”

Despite such objections, Nebraska State Senator Loren Lippincott and 17 of his colleagues have sponsored legislation permitting nitrogen hypoxia to be used in that state.

Lippincott says he hopes that that method would enable the state to resume executions, which have been paused since 2018 because it can’t obtain lethal injection drugs.

Lippincott cited “the outcome of the Alabama case” as evidence that nitrogen hypoxia could be used “humanely give justice to victims’ families and our community.”

The AP reports that the Nebraska senator is “certain a death by nitrogen hypoxia would be painless. A former Air Force and Delta Airlines pilot, Lippincott said he experienced altitude hypoxia simulation as part of his training, and he recalled it to be a painless experience. ‘For me, it was a sensation of being sleepy and a warm feeling. Basically, you just go to sleep.’”

Finally, in April, the Ohio House of Representatives began considering legislation to bring nitrogen hypoxia to that state. Proponents cited the fact that inmates in Alabama had requested to be put to death by that method and lawyers who argued that it is “humane” and “completely painless.”

The inclusion of nitrogen hypoxia, proponents argue, would break the logjam on Ohio executions, given the difficulties with lethal injection drugs. “In our view nitrogen hypoxia is a plan B,” one of them explained. “It is a set of suspenders to go along with the belt. It would be preferable to continue using lethal injection, but we need to do something.”

In Ohio, nitrogen hypoxia’s proponents also point to Alabama’s “success” in using it. They dismiss criticism of Smith’s execution as just a ploy by “death penalty abolitionists speaking in sensational terms.”

Like their legislative colleagues in Louisiana and Nebraska, sponsors of the Ohio legislation insist that nitrogen hypoxia would be “humane” on its own terms and, as one put it, “far more humane than the methods … killers use on their victims.”

These claims about nitrogen hypoxia have a familiar ring to them. Over the past century and a quarter, we have heard similar claims made about other “innovative” execution methods, first electrocution, then the gas chamber, and, finally, lethal injection.

None has lived up to its billing. And there is no reason to think that nitrogen hypoxia will do any better.

As Dr. Joel Zivot, an associate professor of anesthesiology at Emory School of Medicine, rightly observes, nitrogen hypoxia is just a fancy word for “asphyxiation.” In truth, Zivot observes, “It’s the gas chamber strapped to your face.”

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