It is not unusual for the rollout of a new execution method to be bumpy, but what is happening with Alabama’s effort to begin using nitrogen hypoxia is setting a new standard for incompetence and disarray in the death penalty system, reported Slate. After botching three lethal injection executions last year, state officials have sent mixed signals about whether the state would be ready to use nitrogen hypoxia when it plans to execute James Barber on July 20.
Barber was convicted of the 2001 beating death of 75-year-old Dorothy Epps. Prosecutors said Barber confessed to killing Epps with a claw hammer. Jurors voted 11–1 to recommend a death sentence, which the judge then imposed.
Barber’s would be the first execution after Gov. Kay Ivey paused executions for the state Department of Corrections to review execution procedures. In February, she announced that the review was finished and that the state was ready to get back in the execution business.
On June 20, the state attorney general’s office seemed to signal that Alabama could use nitrogen hypoxia to execute Barber in its reply to a suit he brought seeking an order to stop the state from putting him to death by lethal injection. Barber asked the court to require Alabama to “carry out the execution of Mr. Barber only by nitrogen hypoxia.” His lawsuit said that the method was a “readily available alternative.”
According to an article in Reason, “Barber wants to die by nitrogen hypoxia—which involves suffocating the inmate in a gas chamber by increasing the proportion of nitrogen in the air—rather than lethal injection … because [he claims] it will be more humane than death by lethal injection, especially considering the state’s recent record.”
In its brief in Barber’s suit, the attorney general’s office told the court that if it issues an injunction in this case, the judge should limit its “scope so as to permit Barber’s July 20, 2023, execution to be conducted by nitrogen hypoxia.” However, a spokesperson for the Alabama Department of Corrections quickly confused matters by saying that the department was not ready to carry out a nitrogen hypoxia execution and would not be by July 20.
“The Alabama Department of Corrections has completed many of the preparations necessary for conducting executions by nitrogen hypoxia,” the spokesperson continued. “The protocol for carrying out executions by this method is not yet complete. Once the nitrogen hypoxia protocol is complete, ADOC personnel will need sufficient time to be thoroughly trained before an execution can be conducted using this method.”
Further muddying the issue, the commissioner of ADOC, John Hamm, when speaking to reporters after a legislative committee meeting, referred questions about the protocol to the attorney general’s office. “You’d have to ask the AG’s office on the actual protocol,” Hamm said. So, is Alabama ready to carry out executions using nitrogen hypoxia, or not?
Nitrogen hypoxia’s on-again, off-again status in Alabama began in 2018 when it became the third state to add it to its menu of execution options. At the time, state Sen. Trip Pittman, who sponsored the nitrogen hypoxia legislation, made familiar promises and followed the usual playbook used when officials propose new methods of execution.
Echoing what proponents had said about the electric chair the 1880s, the gas chamber in the 1920s, and lethal injection in the 1970s, Pittman said, “I believe [nitrogen hypoxia] is a more humane option … One that is less invasive, and one that I think needs to be an option for the condemned.” He compared the method to the way that passengers on a plane pass out when the aircraft depressurizes.
Alabama was following the lead of Oklahoma, which in 2015 became to first state to authorize execution by nitrogen hypoxia. Mississippi followed suit in 2017. But right from the start, there was little to inspire confidence that this method would deliver the humane executions that other execution methods have also falsely promised.
The idea of using nitrogen hypoxia in executions came from Michael Copeland, then an assistant professor of criminal justice at East Central University in Ada, Oklahoma, who co-authored a white paper on the subject with two of his colleagues at the university. Even though neither he nor his co-authors had any medical training or scientific expertise, Copeland proposed it to Mike Christian, a state legislator who had been a high school classmate.
According to a report from the Equal Justice Initiative, Oklahoma state Rep. Mike Christian became interested in the method after he “reportedly saw a documentary about killing humans that included a segment on nitrogen inhalation.” The process, Christian claimed, “is fast and painless. It’s foolproof.”
But so far, none of the states that adopted it have actually used nitrogen hypoxia in an execution. And even if they were ready to do so, it is not clear that they will be able to obtain the nitrogen needed to carry it out.
The Equal Justice Initiative further reports that “Airgas, an industrial gas distributor that is one of Alabama’s largest suppliers, has announced it will not supply gas for executions. ‘Supplying nitrogen for the purpose of human execution is not consistent with our company values,’ the company said in a statement.”
The company’s CEO added that Airgas is not “working with the state of Alabama, or anyone else, to develop nitrogen hypoxia as an execution method.”
Thus it is not surprising that Alabama has had trouble developing and finalizing a protocol for executions by nitrogen hypoxia. And unlike other methods, any error in the process could be fatal for anyone participating in or witnessing those executions, so getting the protocol right is especially high-stakes.
As Robert Dunham, who is the former executive director of the Death Penalty Information Center, warns, “Nitrogen is colorless, and it is odorless, and the same thing that led the Oklahoma legislature to think that this would be swift and painless—the fact that people were unaware that they were being poisoned at depth or at altitude—those very same factors could make it potentially lethal if gas leaks into areas where the execution team was.”
Or as Joel Zivot, an expert on methods of execution, puts it: Execution by nitrogen hypoxia “may be bloodless, but it won’t be simple.”
There is no room for error in executions by nitrogen hypoxia, which cannot be reassuring in a state like Alabama, with its ghoulish history of botched executions. The state’s recent bureaucratic snafus and grotesquely comedic miscommunications between the agencies responsible for carrying out its executions only add to the sense that if Alabama really were to use it in Barber’s execution, it could turn into a tragedy for him and for everyone who so casually and irresponsibly touted it as a fix for this country’s broken death penalty system.
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