Oklahoma will execute prisoners using an experimental method never before attempted anywhere in the world: nitrogen hypoxia.
State officials cite their difficulty in obtaining the drugs needed for lethal injection as the reason for the change.
Mike Hunter, the state’s attorney general, and Joe M. Allbaugh, the director of the Department of Corrections, announced that Oklahoma will asphyxiate death row inmates by locking them in a chamber that will fill with a physiologically inert gas, such as nitrogen. Such gases are not toxic but instead deplete blood oxygen levels.
Allbaugh said his agency is working to develop a protocol for the new method — which is certain to spark fierce legal challenges. No details of how it might work have been released.
The method has never been tested, but those who support the method contend it is “more humane” than lethal injection. They point to support among advocates of voluntary euthanasia and its use in some food production processes to kill animals.
Death penalty abolitionists, on the other hand, believe capital punishment can never be humane or just, regardless of how painless the method is. They point to statistics of the death penalty being used disproportionately against black and poor people. It does not deter crime, and people who are innocent or too mentally ill to understand their punishment are often executed. Four percent of inmates put to death have been innocent.
It is a cruel and unusual punishment that forgoes the rehabilitative pretense that supposedly undergirds incarceration, according to abolitionists.
Any hypothetical endorsement of nitrogen hypoxia by the medical community would not necessarily legitimize the practice. But it’s worth noting there has been no such endorsement because the leading proponents of using nitrogen hypoxia for capital punishment cases do not possess any relevant medical background.
The use of nitrogen hypoxia was apparently conceived within the pages of the conservative magazine, the National Review. A 1995 article titled, “Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation,” was written by Stuart Creque, a technology consultant from California.
Twenty years later, a former prosecutor and criminal justice professor-turned-legislator introduced HB 1879, a bill to legalize execution-by-nitrogen in Oklahoma.
The bill’s sponsor, Rep. Mike Christian (R), had read about the nitrogen gas method in a 2014 Slate article. That bill passed 41-0 and was signed into law.
Christian explained that unlike traditional gas chambers that used drugs like cyanide, which cause a build-up of carbon dioxide in the blood, breathing nitrogen would be a painless death because it leads to hypoxia – a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.
Other lawyers and professors, like Lawrence Gist II, make up the base of support for nitrogen hypoxia (though Gist claims he opposes the death penalty, he believes the method is preferable as long as the government is in the business of killing people).
As Kim Bellware pointed out in the Huffington Post when Oklahoma considered legalizing nitrogen hypoxia, some proponents support it specifically because they believe it does not require assistance from medical professionals.
However, according to Deborah Denno, a Fordham professor and preeminent death penalty expert, every generation believes its execution methods are more humane and effective than the last. Dr. Joel Zivot, Assistant Professor of Anesthesiology and Surgery at Emory University School of Medicine, informed Denno that medical ethics prohibit doctors from even testing such a premise in the first place.
While some medical professionals believe there is a role for them in reducing suffering during executions, the American Medical Association and the American Society of Anesthesiologists have vigorously opposed it. But rarely if ever have state medical boards, who have authority over doctors licenses, punished those who do participate.
Oklahoma’s turn towards nitrogen hypoxia is a response to multiple horrific botched executions involving lethal injection in recent years.
Drug manufacturers in the United States refuse to supply state governments with drugs commonly used in lethal injections after facing intense pressure from death penalty abolitionists, and European manufacturers forbid the use of their drugs in American executions. But rather than abandon capital punishment, governments have recklessly pushed forward seeking alternate lethal solutions as their death row populations grow increasingly crowded, sick, and elderly.
Botched executions in Oklahoma and other states are often connected to attempts to kill using unauthorized and experimental drug cocktails. Others failed or went horribly awry when officials neglected to properly administer the drugs.
State officials attributed Oklahoma’s grisly execution of Clayton Lockett in 2014, and other botched killings, to efforts by prosecutors to rush the process.
In Lockett’s case, Mike Oakley said the state experimented with the sedative drug Midazolam after consulting with other state corrections departments and doing research on the internet. The result was an unplanned 43-minute execution in which Lockett “groaned, writhed, lifted his head and shoulders off the gurney and said ‘man’” before blinds were drawn that prevented journalists and attorneys from further observation.
“[T]he attorney general’s office, being an elective office, was under a lot of pressure,” the general counsel told the Guardian. “The, the staff over there was under a lot of pressure to, to say, ‘Get it done,’ you know, and so, yeah, I, I think it was a joint decision but there was, I got to say there was a definite push to make the decision, get it done, hurry up about it.”
At the time of Lockett’s execution, Scott Pruitt, who now heads the Environmental Protection Agency under President Donald Trump’s administration and is rumored to be Trump’s pick to replace Attorney General Jeff Sessions, was Oklahoma’s attorney general.
Following Lockett’s horrific death, Richard Glossip and 20 other death row prisoners sued Oklahoma for using the sedative as a substitute for anesthetic drugs. The case went all the way to the Supreme Court, which found Oklahoma had not committed a “clear error” in a narrow ruling. The court did not stay the execution of Charles Warner, the next prisoner scheduled to die after Lockett. Warner was put to death with unauthorized drugs.
Glossip, who was next in line to die after Warner, had his execution date canceled after the state again procured the wrong drugs.
Oklahoma, which has executed more prisoners since the death penalty was reinstated in the 1970’s than any other state, is still pushing forward with executions. Officials appear to have completely ignored a 2015 report published by a death penalty commission for the state, which argued for an extended moratorium on executions and made multiple recommendations to “more humanely” execute people.
In 2016, a state grand jury uncovered major issues throughout the lethal injection process. Officials had modified the injection protocol without authorization. They ordered, received, and used the wrong drugs. They also failed to obtain proper registration for the drugs from federal authorities. The grand jury called for “experts” to oversee the process for nitrogen executions.
It is unclear what accountability for such violations would even look like, because there has been zero accountability. The regulations in question do not have criminal penalties attached to them.
Additionally, there’s an inherent conflict of interest in that it is the attorney general who would prosecute such violations, but it is the same official seeking executions in the first place.
Even though efforts for accountability are constricted, Oklahoma legislators still work to prevent them from succeeding.
In 2017, for example, state legislators passed a bill exempting anyone participating in a lethal injection from the Uniform Controlled Dangerous Substances Act, giving the corrections department legal cover to experiment with execution drugs despite the state’s macabre past experiences.
“Oklahoma is once again asking us to trust it as officials ‘learn-on-the-job,’ through a new execution procedure and method. How can we trust Oklahoma to get this right when the state’s recent history reveals a culture of carelessness and mistakes in executions?” said Dale Baich, an attorney representing the death row prisoners who sued over the state’s execution methods.
“Who are the experts on nitrogen and nitrogen hypoxia who will be brought in? What research has the state undertaken to ensure the safety and legality of this new process?”
Baich added, “Without complete transparency, we have no assurance that executions won’t continue to be problematic. The state should provide more answers before asking the people to trust it to carry out an execution in a humane and legal manner.”
Seventeen inmates have exhausted the appeals process in Oklahoma and are eligible for execution dates.