Alabama plans to execute Alan Lee Miller on September 26. Miller survived a previous execution attempt when the state tried to kill him using lethal injection, and the state later agreed not to employ that method in any subsequent execution.
Miller had previously indicated a preference for death by nitrogen hypoxia.
If Miller’s execution proceeds as scheduled, he would be just the second person put to death using that method. The first person, Kenneth Smith, was executed in January.
Proponents of nitrogen hypoxia claim that it is a safe, reliable, and humane way to carry out an execution. As an article in Scientific American explains, “Nitrogen hypoxia is a method of suffocating a person by forcing them to breathe pure nitrogen, starving them of oxygen until they die.”
CBS News says that “Breathing nitrogen through a mask could, in theory, cause a person to lose consciousness before oxygen deprivation leads to death.” During Miller’s execution, he “will be strapped to a gurney chamber and forced to breathe nitrogen through a gas mask until his body is depleted entirely of oxygen and shuts down.”
Nitrogen deaths come “not from what’s in the gas, but what isn’t.” Proponents argue that “nitrogen is air without oxygen, yet a person dying from it doesn’t feel as if they are suffocating. They still breathe in and expel carbon dioxide but may begin to feel lightheaded, fatigued, and have impaired judgment.”
They say that “several breaths can render a person unconscious,” with death following in a few minutes.
That is how it is supposed to work. But what happened during Smith’s execution exposed the emptiness of those claims and nitrogen hypoxia’s brutality.
On August 1, we learned some new and troubling details about what happened to Smith from documents filed in a case brought by Alan Miller challenging the constitutionality of execution by nitrogen gas.
Before looking at those details, let’s examine the history of nitrogen hypoxia and what we already knew about Smith’s execution.
A decade ago, Mike Christian, a Republican state representative in Oklahoma, first thought about using nitrogen hypoxia as an execution method when he was watching a BBC documentary called “How to Kill a Human Being.” The documentary included a segment describing what happens when nitrogen is inhaled, and a person is deprived of oxygen.
Intrigued, Christian enlisted the help of three non-scientists at East Central University who prepared a 14-page report on nitrogen gas executions. Their report became the basis of Oklahoma’s consideration of this new execution method.
It drew five conclusions about nitrogen hypoxia.
First, it said that “An execution protocol that induced hypoxia via nitrogen inhalation would be a humane method to carry out a death sentence.” It explained that “after breathing pure nitrogen, subjects will experience the following: within eight-to-ten seconds the subjects will experience a dimming of vision, at fifteen-to-sixteen seconds they will experience a clouding of consciousness, and at seventeen-to-twenty seconds they will lose consciousness.”
There is no evidence, the authors wrote, “to indicate any substantial physical discomfort during this process…. Most electrochemical brain activity should cease shortly after loss of consciousness, and the heart rate will…[stop] beating 3 to 4 minutes later.”
They also concluded that “Death sentence protocols carried out using nitrogen inhalation would not require the assistance of licensed medical professionals. Death sentences carried out by nitrogen inhalation would be simple to administer. Nitrogen is readily available for purchase, and sourcing would not pose a difficulty, [and] death sentences carried out by nitrogen inhalation would not depend upon the cooperation of the offender being executed.”
In 2015, Oklahoma legislators authorized the use of nitrogen gas as a backup method of execution should lethal injection be declared unconstitutional or unavailable. In 2018, the state announced plans to switch its method of execution from lethal injection to nitrogen gas asphyxiation.
Since then, Mississippi and Louisiana, as well as Alabama, have joined Oklahoma in specifically authorizing nitrogen hypoxia with Alabama being the only state to have used it as of now.
This brings us back to the Smith execution. Witnesses reported that it was not what it was advertised to be.
One of them, Jeff Hood, who served as Smith’s spiritual advisor and was with Smith in the execution chamber, offered the following details.
“When nitrogen gas started to flow, Kenny’s face grew more and more intense with every second. Colors started to change. Veins started to flex. Every muscle in his body started to tense. His chest moved up and down with gusto. He was clearly trying to breathe…. He started to look as if his head would pop off.”
The gurney, Hood continued, “wasn’t supposed to move. Yet, move it did. Kenny started heaving back and forth. The restraints weren’t enough to keep him still. Kenny was shaking the entire gurney.”
“Kenny’s muscles went from tensed up to looking like they were going to combust. Veins spider-webbed in every direction…. There was nothing in his body that was calm.”
Repeatedly, Hood noted, “Kenny’s face jerked toward the front of the mask…. Saliva, mucus, and other substances shot out of his mouth…. Back and forth … Kenny kept heaving. Convulsions gave way to shallow breathing…. Every breath brought more death.”
It is no wonder that, after Smith’s execution, Miller changed his mind about nitrogen hypoxia. And last week added new and disturbing information about what happened during Smith’s execution.
The AP reported that “A corrections officer who helped carry out the nation’s first nitrogen gas execution said in a court document that the inmate had normal blood oxygen levels for longer than he expected before the numbers suddenly plummeted…. Another court document indicated that the nitrogen gas was flowing for at least 10 minutes during the execution.”
The officer said, “A pulse oximeter showed that Smith had oxygen levels of 97% to 98% for a period of time that was longer than I had expected.” But he insisted that this occurred because “Smith held his breath and lost consciousness when he breathed nitrogen gas—not that the mask did not fit or that the nitrogen was impure.”
Attorneys for Miller told the court that it would be impossible for someone to hold their breath for as long as the execution took. They offered expert testimony that “most people can hold their breath only a minute or less.”
By any account, 10 minutes is a stark departure from what the proponents of nitrogen hypoxia promised: loss of consciousness “at seventeen-to-twenty seconds” and death 3 or 4 minutes later.
In the end, Kenneth Smith’s spiritual advisor got it right when he said that Smith’s execution “wasn’t just death of a man—it was death to any idea that there could be anything humane about executing a person.” Alabama should learn that lesson and cancel its plan to execute Alan Miller by nitrogen hypoxia.
And, if it won’t, the courts should order it to do so.
