Arkansas Death-Sentenced Prisoners File Lawsuit Challenging Constitutionality of State’s New Nitrogen Gas Execution Law

On August 5, 2025, a group of ten Arkansas death-sen­tenced pris­on­ers filed a law­suit chal­leng­ing a new state law that autho­rizes their exe­cu­tion using nitro­gen gas. Act 302, which Governor Sarah Huckabee Sanders signed into law in March 2025, went into effect on the same day the law­suit was filed. The pris­on­ers’ law­suit argues that the new law is uncon­sti­tu­tion­al because it vio­lates the state constitution’s sep­a­ra­tion of pow­ers. All ten pris­on­ers includ­ed in the law­suit were sen­tenced to be exe­cut­ed using lethal injec­tion. They argue that the new law gives state offi­cials ​“unfet­tered dis­cre­tion” to choose a dif­fer­ent exe­cu­tion method, with no guid­ance or pro­to­col about the use of nitro­gen gas in place.

State supreme court prece­dent holds that the leg­is­la­ture must pro­vide ​“rea­son­able guide­lines” which the Arkansas Department of Corrections (ADC) must fol­low when car­ry­ing out exe­cu­tions. ​“By leav­ing the deci­sion as to how the state will car­ry out exe­cu­tions to the ADC, with no guid­ance as to how to make that deci­sion, the leg­isla­tive branch grants exces­sive dis­cre­tion to the exec­u­tive branch,” in vio­la­tion of the sep­a­ra­tion of pow­ers, explains the law­suit. Attorney Heather Fraley not­ed that the fail­ure has left the pub­lic and pris­on­ers with many ques­tions. ​“We don’t know what’s the qual­i­ty or quan­ti­ty of nitro­gen that would be used. How would it be admin­is­tered? Would it be a mask? Would it be a hood? Would it be a cham­ber?” Ms. Fraley asked. 

The law­suit asks the Pulaski County Circuit Court to declare Act 302 uncon­sti­tu­tion­al and to bar Arkansas from exe­cut­ing the ten pris­on­ers by nitro­gen gas, argu­ing that to do oth­er­wise would vio­late the author­i­ty of the courts and uncon­sti­tu­tion­al­ly mod­i­fy their death sen­tences. Ms. Fraley not­ed that ​“Arkansas juries explic­it­ly sen­tenced our clients to exe­cu­tion by lethal injec­tion — not gas — and the General Assembly can­not rewrite those ver­dicts to impose death by this very dif­fer­ent and high­ly prob­lem­at­ic method.” Ms. Fraley explained to Law360 that this law­suit does not chal­lenge the con­sti­tu­tion­al­i­ty of nitro­gen gas exe­cu­tions, but rather the del­e­ga­tion of exces­sive author­i­ty to state offi­cials to, in essence, over­ride the juries’ deci­sions to sen­tence these men to death by lethal injec­tion. ​“We just don’t know what the jury’s sen­tenc­ing cal­cu­lus may have been if nitro­gen had been an avail­able method of exe­cu­tion,” Ms. Fraley told Law360. 

In 2024, Alabama became the first state to car­ry out an exe­cu­tion by nitro­gen gas, and wit­ness accounts indi­cate it was not the ​“text­book” exe­cu­tion state offi­cials claimed it was. Though state offi­cials had assured the courts that the nitro­gen gas would cause ​“uncon­scious­ness in sec­onds,” wit­ness­es report­ed that Kenneth Smith appeared awake for sev­er­al min­utes after the nitro­gen gas began to flow. They observed that he ​“shook and writhed” for at least four min­utes before breath­ing heav­i­ly for a few addi­tion­al min­utes. ​“This was the fifth exe­cu­tion that I’ve wit­nessed in Alabama, and I have nev­er seen such a vio­lent reac­tion to an exe­cu­tion,” said media wit­ness Lee Hedgepeth. Subsequent exe­cu­tions using nitro­gen gas have also raised ques­tions about whether pris­on­ers are suf­fer­ing pain and distress. 

Arkansas is the fifth state to autho­rize exe­cu­tions by nitro­gen gas. Alabama and Louisiana are the only two states to have used this method to date, and the only two with spe­cif­ic pro­to­cols for nitro­gen gas use. 

Governor Sanders pre­vi­ous­ly stat­ed she has no set time­line for resum­ing exe­cu­tions in Arkansas, not­ing that she under­stands ​“the sever­i­ty and respon­si­bil­i­ty that comes with [sched­ul­ing exe­cu­tions].” ​“I’m cer­tain­ly not rush­ing to take action on that. We will be very thought­ful and delib­er­a­tive as we go through the process.” 

Arkansas last car­ried out an exe­cu­tion in 2017, with the lethal injec­tion exe­cu­tion of Kenneth Williams, and has not had a new death sen­tence imposed by a jury since 2018.