In late January, Alabama became the first state to use nitrogen gas for executions, finding a new way to carry out executions after pharmaceutical companies refused to use their products for lethal injections.
Kenneth Eugene Smith, 58, was sentenced to death on January 25 for the 1988 murder of Elizabeth Sennett, 45. State prison officials placed a mask over his face, replacing the air he breathed with nitrogen gas and cutting off his oxygen.
Alabama said it plans to continue using the new method. Other states are considering following suit, given that nitrogen gas, the main ingredient in nitrogen executions, is readily available for purchase. But at least one company has said it will no longer supply nitrogen for executions, and anti-death penalty groups hope others will do the same.
Despite the availability of nitrogen gas, legal issues could pose a major hurdle for prison officials trying to procure it, at least for the time being.
how did we get here?
The death penalty has become difficult to carry out in some states because pharmaceutical companies refuse to use their products for lethal injections and ongoing lawsuits over the method of execution. This led them to seek other means of carrying out executions.
Three states, Oklahoma, Mississippi, and Alabama, have approved nitrogen gas as an execution method. In Oklahoma, nitrogen has been approved as a backup method when lethal injection is unavailable due to court rulings or drug shortages. Alabama law gives prisoners the option to choose nitrogen as their preferred method.
Opponents of the death penalty place signs along the road to the Holman Correctional Facility in Atmore, Alabama, ahead of the nitrogen gas execution of Kenneth Eugene Smith, scheduled for January 25, 2024. (AP Photo/Kim Chandler)
Where did Alabama get its nitrogen?
Just as the state declined to name its supplier of lethal injection drugs, the Alabama Department of Corrections will not say where it obtained the nitrogen gas used to kill Smith. The state redacted supplier-identifying information in federal court records. The gas used was certified to be 99.999% pure nitrogen, according to court documents filed by the state.
Where can the nation get nitrogen from?
Nitrogen gas can be easily purchased without a license from manufacturers, industrial suppliers, and even online retailers. Nitrogen gas is used for a variety of purposes, including manufacturing, welding, tire inflation, and equipment calibration and maintenance. Abundant supply is likely one reason why some states are interested in this new method.
The air around us is 78% nitrogen, and you can purchase generators that separate nitrogen from other gases in the air to produce highly pure nitrogen. This could allow prison officials to bypass suppliers who are reluctant to supply nitrogen gas for executions.
Can a company refuse to supply gas?
At least one major manufacturer, Airgas, which was acquired by French-owned Air Liquide, said it would no longer supply execution gas. This stance is similar to that of pharmaceutical companies who refuse to supply lethal injection drugs.
“Since 2019, Airgas has publicly stated its position that the supply of nitrogen for human execution purposes is not consistent with our values, and that position remains unchanged. “We do not and will not supply nitrogen or other inert gases to induce “human executions,” a company spokesperson wrote in an email.
Bianca Tirek, founder of criminal justice advocacy group Worth Rises, said she hopes other manufacturers will follow Airgas and pharmaceutical companies’ lead.
He acknowledged that it would be more difficult to cut off the supply of readily available high-purity nitrogen gas, but called on companies to ban their products from being used in executions.
Even as supplies of lethal injection drugs were cut by manufacturers, states found workarounds, such as relying on compounding pharmacies.
Are there any obstacles to execution with nitrogen gas?
Activists and lawyers for death row inmates will continue to fight against the use of nitrogen gas in executions, and legal challenges could slow things down, at least for a while.
Already, critics have cited witness accounts that showed Smith convulsing on the stretcher for several minutes, proving that nitrogen gas will not produce the humane and quick death the state promised.
What are Alabama’s plans?
The day after Smith’s death, Alabama Attorney General Steve Marshall declared the execution a success and said the state would pursue more nitrogen executions in the future. He offered assistance to other states hoping to follow Alabama’s path.
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However, hypoxic nitrogen is not a replacement for lethal injection in Alabama. Going forward, the state’s execution methods will be based on “the inmate’s choice,” Marshall said.
Alabama gave inmates a brief grace period to select nitrogen as their preferred method of execution. More than 40 death row inmates in the state have chosen the nitrogen method as their preferred method. But the next time the state attempts to set a date for an execution using nitrogen gas, it is almost certain to be sued over the circumstances surrounding Smith’s execution.
An Alabama death row inmate has filed a lawsuit challenging the constitutionality of nitrogen gas executions. The lawsuit cites eyewitness accounts of Smith shaking and struggling on the gurney, calling Smith’s execution “a human experiment that authorities failed miserably” and “will not be allowed to repeat.” insisted. A federal judge has set a hearing for March on the death row inmate’s request to see unredacted nitrogen execution protocols, gas masks and other information disclosed to Smith’s attorneys.
