Ohio Officials Divided on Death Penalty as Attorney General Pushes New Bill to Legalize Nitrogen Hypoxia for Executions

On Tuesday, January 30, Ohio Attorney General Dave Yost announced new leg­is­la­tion to autho­rize the use of nitro­gen gas in exe­cu­tions in the state. Joined by sev­er­al Republican state rep­re­sen­ta­tives and Louis Tobin of the Ohio Prosecuting Attorneys Association, AG Yost said that he is seek­ing to ​“kick­start” Ohio’s death penal­ty after a six-year pause in exe­cu­tions due to dif­fi­cul­ties obtain­ing lethal injec­tion drugs. ​“The sta­tus quo is unac­cept­able,” he said. According to the text of the pro­posed bill, H.B. 392, a pris­on­er could elect lethal injec­tion or nitro­gen hypox­ia as their pre­ferred method of exe­cu­tion, but nitro­gen hypox­ia would be used if lethal injec­tion becomes unavail­able. The bill also includes crim­i­nal penal­ties for any­one who ​“reck­less­ly” dis­clos­es ​“exe­cu­tion iden­ti­fy­ing infor­ma­tion,” defined as per­son­al details about exe­cu­tion team mem­bers and peo­ple involved in the sup­ply chain of exe­cu­tion mate­ri­als. Anyone dis­clos­ing such infor­ma­tion would be guilty of a fourth-degree misdemeanor.

The bill fol­lows the January 25 exe­cu­tion of Kenneth Smith in Alabama, the first state to use nitro­gen gas in an exe­cu­tion. Media wit­ness­es at Mr. Smith’s exe­cu­tion report­ed that he ​“shook and writhed,” appear­ing to be in dis­tress for sev­er­al min­utes as his body was deprived of oxy­gen. At the press con­fer­ence announc­ing the new leg­is­la­tion, offi­cials assert­ed that this method was ​“humane” and would be the ​“most palat­able” for Ohio to use.

In response to media ques­tions about the use of the death penal­ty in Ohio, AG Yost said that death-row exon­er­a­tions proved that the ​“sys­tem works.” However, DPI research shows that 10 of 11 Ohio death-row exon­er­a­tions involved offi­cial mis­con­duct, a find­ing at odds with his statement.

Governor Mike DeWine and for­mer direc­tor of the Ohio Department of Rehabilitation and Correction Gary Mohr were among the promi­nent fig­ures who expressed con­cerns about the pro­posed leg­is­la­tion fol­low­ing the press con­fer­ence. An exe­cu­tion method should be ​“a proven method that peace­ful­ly ends life,” said for­mer direc­tor Mohr. He said that he was ​“not con­vinced” that nitro­gen gas ​“meets [his] belief that peo­ple shouldn’t strug­gle,” and not­ed that staff and view­ers would be trau­ma­tized watch­ing a per­son strug­gle dur­ing an exe­cu­tion. Mr. Mohr super­vised 15 exe­cu­tions in his pre­vi­ous role and has since felt mis­giv­ings about the death penal­ty. ​“Having been per­son­al­ly involved in not just exe­cu­tions but 50 years of this work, and being a prison war­den for 12 years and see­ing oth­er peo­ple who have life sen­tences with very, very sim­i­lar types of acts that gen­er­at­ed that sen­tence, I’m not con­vinced at this point that we’re exe­cut­ing the worst of the worst,” he said.

Similarly, when asked about the new leg­is­la­tion, Governor DeWine reit­er­at­ed his doubts about the death penalty’s effi­ca­cy. He declined to com­ment on nitro­gen hypox­ia, cit­ing the pend­ing leg­is­la­tion, but did say he did not know much about the method since it had only been used once. ​“If you had 10 things to do to reduce crime, 10 things to save lives, the death penal­ty would prob­a­bly not be on that top 10 list,” he said. He not­ed that the aver­age time between offense and exe­cu­tion ​“does raise a seri­ous ques­tion of whether or not [the death penal­ty] is in fact a deterrent.” 

H.B. 392 com­petes with a pack­age of death penal­ty abo­li­tion bills intro­duced by a bipar­ti­san group of state rep­re­sen­ta­tives in 2023. Representative Jean Schmidt (R), a spon­sor, said at the time that ​“life begins at con­cep­tion and it ends with nat­ur­al death…the death penal­ty is any­thing but nat­ur­al.” The bills, S.B. 101 and H.B. 259, are cur­rent­ly pend­ing. Senate Minority Leader Nickie Antonio (D), a spon­sor of S.B. 101, crit­i­cized H.B. 392 fol­low­ing Tuesday’s press con­fer­ence. Nitrogen gas is ​“a method so uncon­scionable that vet­eri­nar­i­ans reject its use to euth­a­nize ani­mals,” she said. ​“Ohio should show moral lead­er­ship and reject the death penal­ty out­right rather than fall in line with this misguided policy.”