Oklahoma Attorney General Mike Hunter and Director of Corrections Joe Allbaugh on March 14 jointly announced the state plans to adopt an execution method never before used in the United States: asphyxiation by nitrogen gas.
In 1977, Oklahoma’s medical examiner devised a multi-drug lethal injection protocol, as an alternative to electrocution or hanging. The state was also the first to conduct lethal-injection executions, though other states soon followed.
In Oklahoma and elsewhere, lethal injection executions had also faced numerous legal challenges. For instance, the U.S. Supreme Court by a narrow 5-4 margin, in a 2015 case (Glossip v. Gross), upheld Oklahoma’s lethal injection method against claims the sedative midazolam allowed suffering so extreme as to be unconstitutional.
But, as campaigns by death penalty opponents led makers of drugs used in lethal injections to refuse to provide them for executions, it became increasingly difficult for states to obtain them. At the joint announcement, Corrections director Allbaugh spoke of having to call “all around the world, to the backstreets of the Indian sub-continent,” trying to procure lethal injection drugs.
As it searched for alternatives, Oklahoma experienced several highly-publicized botched executions. In 2014, while using a new substitute sedative, a faulty IV line left a condemned inmate writhing and kicking on the gurney for 43 minutes, until he died of a heart attack. Early the next year, state officials were found to have used an incorrect drug in another execution, which a grand jury harshly criticized and ordered a halt to executions until a new execution protocol passed review. As a result, Oklahoma – formerly one of the most active in carrying out the death penalty -– hasn’t had an execution since January 2015.
Within months, the Oklahoma legislature had passed, and the governor signed a law making nitrogen gas asphyxiation the state’s back-up execution method. In 2016, Oklahoma voters approved a measure letting the state use any Constitutionally permissible method. State officials say they’ll soon develop a protocol for nitrogen gas executions, though they didn’t do that in the two previous years.
A tasteless, odorless gas, nitrogen comprises nearly 80% of the earth’s atmosphere. It’s never been used anywhere as an execution method, but it’s known to have accounted for industrial fatalities, in which workers did not recognize they were being suffocated as an excess of nitrogen displaced oxygen from their bodies.
Oklahoma argues that gradually pumping nitrogen into the lungs of a condemned prisoner, perhaps through a face mask, would bring about a painless death within a matter of minutes. Opponents counter the method is untested, and point out veterinary medicine groups have not even approved it for euthanizing animals.
But the method is gaining attention: two other states (Alabama and Mississippi) have already authorized it, though neither has implemented it. Nitrogen also has the advantage of being plentiful, inexpensive and easy to obtain, unlike increasingly costly and difficult-to-procure lethal injection drugs.
Even states which may not be considering nitrogen gas asphyxiation could be working to find other alternatives to lethal injections. Some are adopting or weighing new formulations for lethal injections. Others have reverted to formerly used but discarded methods; Tennessee has again authorized use of the electric chair, and Utah is once again permitting executions by firing squad.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.