In March 2018, Alabama enact­ed a new law autho­riz­ing the use of nitro­gen gas as an alter­na­tive method of exe­cu­tion. Although lethal injec­tion remained the pri­ma­ry method of exe­cu­tion, the law pro­vid­ed con­demned pris­on­ers a lim­it­ed oppor­tu­ni­ty to des­ig­nate nitro­gen asphyx­i­a­tion (hypox­ia) as the means of their death. The avail­abil­i­ty of exe­cu­tion by nitro­gen gas led to a July 2018 set­tle­ment of a fed­er­al law­suit Alabama’s death-row pris­on­ers had filed that had chal­lenged the con­sti­tu­tion­al­i­ty of the state’s three-drug lethal injec­tion pro­to­col as con­sti­tut­ing cru­el and unusu­al pun­ish­ment. But nine months after the law was enact­ed and five months after the pris­on­ers opt­ed for exe­cu­tion by lethal gas, Alabama has not yet issued a pro­to­col explain­ing how it intends to con­duct nitro­gen-gas exe­cu­tions, and there are no clear indi­ca­tions as to when the state will do so.

No state has car­ried out an exe­cu­tion through nitro­gen hypox­ia, although three states – Alabama, Mississippi, and Oklahoma – now autho­rize its use if lethal injec­tion is held uncon­sti­tu­tion­al or deter­mined to be unavail­able. Alabama also per­mits its use if the pris­on­er selects lethal gas over lethal injec­tion. Other forms of lethal gas, all involv­ing a gas cham­ber, have been used in 11 of the 1,490 exe­cu­tions car­ried out in the United States since exe­cu­tions resumed in 1977. However, none of the states autho­riz­ing the use of nitro­gen gas has issued a nitro­gen-gas exe­cu­tion pro­to­col nor have the states indi­cat­ed whether they plan to con­struct a vac­u­um cham­ber or use some form of a death mask to admin­is­ter the gas.

The Alabama leg­is­la­ture turned to nitro­gen gas as an alter­na­tive to lethal injec­tion in response to dif­fi­cul­ty obtain­ing appro­pri­ate drugs for lethal injec­tion and a series of botched or vis­i­bly prob­lem­at­ic lethal-injec­tion exe­cu­tions using the drug mida­zo­lam. In February 2018, the exe­cu­tion of Doyle Lee Hamm was called off after an Alabama exe­cu­tion team failed for two-and-a-half hours to find a suit­able vein in which to place an intra­venous exe­cu­tion line. In October 2017, wit­ness­es to the 35-minute exe­cu­tion of Torrey McNabb report­ed­ly ​“expressed repeat­ed con­cerns to each oth­er that he was still con­scious dur­ing the lethal injec­tion.” Witnesses also report­ed that Ronald Smith heaved, coughed, clenched his left fist, and opened one eye dur­ing one 13-minute peri­od of his 34-minute exe­cu­tion in December 2016. In November and December 2018, two Tennessee death-row pris­on­ers elect­ed to be exe­cut­ed in the elec­tric chair after a med­ical expert report­ed that Billy Ray Irick had not been prop­er­ly anes­thetized and expe­ri­enced the tor­tur­ous effects of the sec­ond and third lethal-injec­tion drugs while still con­scious dur­ing a pro­longed midazolam execution

After a gas pro­to­col is pro­mul­gat­ed, it will still be sub­ject to court chal­lenges based upon the par­tic­u­lar method cho­sen. The Alabama Department of Corrections has said it is ​“con­tin­u­ing to devel­op the pro­to­col” in con­junc­tion with the Alabama Attorney General’s Office.

(Brian Lyman, With nitro­gen bill, Alabama must invent exe­cu­tion method, Montgomery Advertiser, November 23, 2018.) See Lethal Injection and Methods of Execution.

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