Alabama plans to use untested enforcement method: What is nitrogen hypoxia?

Alabama told a federal judge this week that it will soon be ready to use a new, untested execution method called nitrogen hypoxia to carry out a death sentence.

The disclosure came Monday during a court hearing on inmate Alan Miller’s request to block his scheduled Sept. 22 execution by lethal injection. Miller maintains that prison staff lost paperwork he returned in 2018 requesting nitrogen hypoxia, an execution method the state authorized but never used.

James Houts, a deputy state attorney general, said the procedure could be available as soon as next week. However, the final decision on when to use the new method rests with the state corrections commissioner.

Here’s what to know about nitrogen hypoxia:

Has it been used in an execution?

No state has used nitrogen hypoxia to carry out the death sentence.

In 2018, Alabama became the third state — along with Oklahoma and Mississippi — to allow the unprecedented use of nitrogen gas to kill inmates. Some proponents theorize that nitrogen hypoxia would be a simpler and more humane method of execution.

How does this work in an implementation?

This undated photo shows inmate Alan Eugene Miller, who was convicted of capital murder in a workplace shooting that killed three men in 1999. Miller said he previously requested that nitrogen hypoxia be used in his killing . (Alabama Department of Corrections/The Associated Press)

Nitrogen makes up 78 per cent of the air that humans breathe and is harmless when inhaled by oxygen. The theory behind the implementation method is that changing the composition of the air to 100 percent nitrogen will deprive the person of the oxygen needed to maintain body functions.

Trip Pittman, a former Republican lawmaker in Alabama who sponsored the 2018 legislation, theorized that it would be similar to how airline passengers die when a plane goes down.

The state has released little information about the proposed scheme. Most of the available information comes from court proceedings. The Alabama Department of Corrections told a federal judge last year that it had completed a “system” to use nitrogen gas but did not describe it.

At a Sept. 11 court hearing, a state attorney said they asked Miller if he would consent to wearing a mask, an indication the state may intend to place a face mask over the inmate’s nose and mouth.

Why consider the new method?

After the death penalty was reinstated in the US in 1976, most executions were carried out by electrocution, with some by gas chamber, hanging or firing squad. Lethal injection was first performed in 1982 and became the dominant method, which officials believed to be a more humane and efficient method. According to the non-profit Death Penalty Information Center (DPIC), 1,370 people have been executed by lethal injection, representing 88 percent of all executions since 1976.

States have begun to propose nitrogen hypoxia as an alternative method of execution due to the difficulty in obtaining lethal injection drugs, since in recent years pharmaceutical companies and their shareholders have refused to sell their product in the states for use in the death penalty.

Other states have even considered the possibility of using firing squads or electrocution, though legal challenges have prevented those methods from being used again.

What are the concerns?

Critics have likened the untested method to human experimentation.

“It’s completely untested,” said Robert Dunham, executive director of the Death Penalty Information Center. No state has publicly released a protocol describing how it will work.

While proponents theorized it would be quick and painless, Dunham noted that states once said the same thing about the electric chair.

The euthanasia guidelines of the American Veterinary Medical Association state that inert gas hypoxia is acceptable, under certain conditions, for the euthanasia of chickens, turkeys and pigs, but is not recommended for other mammals such as of rats.

What happens next?

Alabama is working on finalizing a protocol for the use of nitrogen hypoxia. The measures should be added to the existing state protocol describing the procedures for an execution using the electric chair or lethal injection.

He said Alabama’s prison commissioner has the final say on when to allow its use. Litigation is expected if the state decides to move forward with the scheme.

What is the state of the death penalty in the US?

Currently, 27 states allow the death penalty, though the governors of three of them have issued a moratorium on the practice for as long as they are in office.

Of the remaining 24, only a small number have continued to carry out executions over the years. Most states have seen the consequences of overzealous or flawed prosecutions, with 185 inmates “released from death row with evidence of their innocence,” according to the DPC.

After the death penalty was reinstated in the US in 1976, the largest number of executions carried out in one year occurred in 1999, with a total of 98 prisoners. The total has been fewer than 40 in each year since 2013, falling to a record-low of 11 in 2021. So far this year, there have been 10 executions overall, carried out in Alabama, Florida, Missouri, Oklahoma and Texas.

During the administration of Donald Trump, 13 executions have been carried out of inmates given federal death sentences, the first carried out at the federal level since 2003. Attorney General Merrick Garland of President Joe Biden’s administration has ordered a halt to federal executions last year until a full review of the practice could be completed.