Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object

By Dakin Andone, CNN

(CNN) — The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.”

Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one. Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

But months later – as the circumstances of Smith’s death continue to fuel debate about nitrogen hypoxia – it’s also increasingly unclear whether more states will, in earnest, follow Alabama in implementing the method, which involves replacing the air breathed by the condemned inmate with 100% nitrogen, depriving them of oxygen. Oklahoma and Mississippi have also legalized nitrogen hypoxia, but Alabama, which plans to execute a second inmate with nitrogen gas this fall, is the sole state to have put someone to death using it.

Only one of the recently proposed state bills authorizing such a form of execution has been signed into law: Two were stuck before committees when their state legislatures adjourned this year, and a sponsor of the third acknowledged its future is uncertain.

“We’re not seeing a lot of states jumping on board,” said Robert Dunham, director of the Death Penalty Policy Project at Phillips Black, a nonprofit law firm that specializes in post-conviction legal representation, describing the bills so far as “a reflexive reaction by some legislators in some states who are desperate to find alternatives to lethal injection.”

“I think that in states in which there is not a reflexive reaction and legislators actually take time to consider what it means to suffocate a prisoner to death with nitrogen gas or other gas, you are unlikely to see gas adopted as an alternative.”

Meantime, several manufacturers of nitrogen gas have said they oppose their products being used for executions, echoing the kind of bans many pharmaceutical companies have instituted for their drugs in lethal injections – thus prompting states to seek an alternative. To head off this complication, the bills proposing nitrogen hypoxia and the like also aim to implement or expand protections shielding those involved with executions from being publicly identified.

Taken together, the middling legislative efforts, vocal resistance of some gas producers and declining public support for capital punishment signal nitrogen executions may not be widely embraced among US death penalty states – at least for now.

“There are very few states that are actually still interested in executing prisoners,” Dunham said.

“One execution is not enough experience to predict what is going to happen among the handful of states that want to get back in the business of killing prisoners. But beyond the initial reflexive introduction of bills in a small number of states, I don’t think there’s going to be a larger first wave of attempts to expand execution methods across the country.”

One bill passes …

While some US states decades ago used lethal gas to execute prisoners, the use of nitrogen hypoxia is new. And within weeks of Smith’s execution, legislators in Louisiana, Ohio and Kansas put forward bills to adopt nitrogen hypoxia, while a fourth bill in Nebraska that predated Smith’s execution got renewed attention.

It was a small group, given capital punishment remains legal in 27 states and in federal court.

“Often what states do is they imitate,” said Austin Sarat, a professor of political science and law at Amherst College who has written extensively and critically about the death penalty. He cast nitrogen hypoxia as just the latest method for states to seize upon in their search since the late 19th century for “a method of execution that would be safe, reliable and humane.”

Only Louisiana’s bill, though, has received the governor’s signature, making it the fourth state to adopt nitrogen hypoxia.

HB 6 passed during a special session called by Republican Gov. Jeff Landry in February to address a wish list of criminal justice items. Its author, GOP state Rep. Nicholas Muscarello, told CNN he expected his legislation – which also re-authorized the use of electrocution – to facilitate the return of executions in the state, which hasn’t put someone to death since 2010. Still, Muscarello anticipated most executions would be carried out using lethal injection, he said.

When the regular session convened, however, it was clear the act would not go into effect without a fight. Another bill, SB 430, was introduced by Democratic state Sen. Katrina Jackson-Andrews, seeking to undo HB 6’s nitrogen gas provision while preserving its other pieces.

Jackson-Andrews, who did not respond to CNN’s request for an interview, had the vocal backing of a coalition called Jews Against Gassing, which opposes gas executions because they echo the Holocaust, when 6 million Jews were murdered by Nazi Germany before and during World War II.

“When this came up, it evoked trauma for me,” Jacquelyn Stern, 70, a member of the coalition, said of HB 6. She described knowing survivors of the Holocaust and going to school with their children, all of whom were deeply traumatized.

“It flies in the face of what a civilized community ought to be, to want to gas people when this is what Nazi Germany did,” she said. “Here we are, in Louisiana, just turning a blind eye to that.”

SB 430 passed the Louisiana state Senate with bipartisan support. But when it went before the state House Committee on the Administration of Criminal Justice on May 21, the committee rejected it, killing the bill and leaving Stern feeling disappointed, helpless and unrepresented.

… while the other bills languish

Ohio’s bill appears to be the only other legislation in this vein that could be adopted. Republican state Reps. Phil Plummer and Brian Stewart proposed HB 392 with the support of the state’s GOP attorney general, who said nitrogen hypoxia could bring “closure” to victims after years of the state struggling to obtain the drugs necessary for lethal injections, leading to an effective moratorium on Ohio’s death penalty.

Plummer echoed that, seeing the bill as a way for the state to again put violent killers to death, he told CNN.

“We decided to follow step with Alabama with the nitrogen hypoxia as just another method,” he said. “The important thing here is we’re not changing the death penalty. It’s already in statutes. But we’re just giving government another option.”

The bill remains before the state House Government Oversight Committee, which Plummer said would hold three hearings before it’s approved: One for the bill’s sponsors and another for its proponents are complete; the third, for those opposed, has yet to be scheduled.

At the first hearing, Plummer and Stewart were questioned by committee members, including Democrats who invoked Alabama’s execution of Smith, echoing debate there over whether that execution was humane.

Ahead of Smith’s execution, critics had raised alarms, fearing elements contained in Alabama’s protocol – which has only been made public in heavily redacted form – would lead to undue suffering for the inmate. The state argued against these claims, saying in court records nitrogen hypoxia was perhaps the most humane execution method ever.

After he was dead, both sides pointed to Smith’s execution as evidence their claim had been borne out. GOP Alabama Attorney General Steve Marshall called it “textbook,” while critics pointed to witness accounts that Smith shook and writhed on the gurney for minutes before his death and did not slip into unconsciousness within seconds as the state, citing its own expert, claimed he would.

Plummer dismissed the criticism, telling CNN, “The critics always complain things like that are inhumane. That’s their talking point.”

“We don’t want people to suffer. But at the end of the day, it’s the law, and it’s our job to enact the law,” he said, adding he was open to hearing about alternatives.

It’s unclear whether Ohio’s HB 392 will pass. Plummer attributed the uncertainty to division within the state’s Republican caucus after a taxing House speaker’s race.

Meantime, legislatures in Kansas and Nebraska both adjourned without passing their respective bills, and each would need to be reintroduced to be considered again.

Nebraska’s LB 970 is listed as “indefinitely postponed.” Its sponsor, Republican state Sen. Loren Lippincott, declined an interview but in an email said he had yet to decide whether to reintroduce the legislation next year.

Separately, Kansas’ HB 2782 – which would add “hypoxia” as an execution method but does not specify the use of nitrogen gas – got a hearing before the state House Committee on Judiciary but appeared to progress no further. GOP Kansas Attorney General Kris Kobach, whose office requested introduction of the bill, will seek to have a similar one introduced during next year’s legislative session, a spokesperson told CNN.

Some gas producers are opposed …

Beyond sputtering legislation, states hoping to implement nitrogen executions could face another hurdle: lacking the elements to carry them out.

Among its proponents, a stated benefit of nitrogen hypoxia has been the readily available nature of nitrogen gas, which makes up about 78% of Earth’s atmosphere and is used widely across various industries for an untold number of applications.

But several companies certified by the US Food and Drug Administration to produce nitrogen gas for human use have confirmed to CNN they oppose or would not allow their products to be used for the purposes of carrying out executions, as first reported by The Guardian.

For example, AirGas – owned by Air Liquide, a French company – “has not and will not supply nitrogen or other inert gases to induce hypoxia for the purpose of human execution,” it told CNN in a statement.

“Since 2019, Airgas has publicly articulated its position that supplying nitrogen for the purpose of human execution is not consistent with our company values,” the statement said, “and that position has not changed.”

Similarly, Linde, a European company, “has a long-standing policy prohibiting the sale of our gases for use as an asphyxiant applied to humans,” it said in a statement to CNN. “We do not knowingly sell to third parties nor offer bids on contracts seeking to secure gases for this purpose.”

And Air Products, another company, told CNN it had “established prohibited end uses for our products, which includes the use of any of our industrial gas products for the intentional killing of any person (including nitrogen hypoxia).”

While not an exhaustive survey of nitrogen producers, opposition by these companies echoes that of pharmaceutical drugmakers who prohibited their products from being used in lethal injections.

Sarat linked companies’ objection – whether they produce nitrogen or drugs – to the current “period of national reconsideration of capital punishment,” including not just declines in the numbers of executions and death sentences but also in public support for the death penalty. A Gallup Poll published last November found only 47% of Americans believe the death penalty is fairly applied, while 53% support the death penalty for a convicted murderer overall – far below the 80% peak seen in 1994.

“As doubts emerge about capital punishment, as people begin to think maybe this isn’t such a great idea, companies who are in the business of manufacturing pharmaceuticals, or companies that produce nitrogen, won’t want their products associated with the American death penalty,” said Sarat. “Would it surprise me that there might be supply problems? No, it wouldn’t surprise me.”

… as states seek to expand secrecy rules

For their part, the states mulling nitrogen hypoxia appear to have anticipated this, building into their proposed bills language preventing suppliers from being publicly identified.

Louisiana’s HB 6 specifically added a provision that would “ensure the absolute confidentiality of the identifying information of any person, business, organization, or other entity directly or indirectly involved in the execution of a death sentence” in the state. “This confidentiality provision shall prevail over any conflicting provision in state law related to public disclosure.”

Information about purchases for executions would be disclosed to the state inspector general, who would examine that information and certify the purchases, the bill notes.

Similarly, Ohio’s HB 392 expands already-existing protections, extending the prohibition of the release of “execution identifying information” to anyone who manufactures, distributes, prepares or administers a drug or gas for an execution.

That provision, Plummer told CNN, was intended to prevent Ohio from having the same acquisition troubles with nitrogen as it does with lethal injection drugs, preventing suppliers from falling victim to public backlash.

“We’re just trying to give a layer of protection to the makers of the substance we need,” he said, “because cancel culture’s alive and well.”

CNN’s Eva Roytburg contributed to this report.

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