Use of Nitrogen Hypoxia for Alabama Executions Could Endanger Spiritual Advisors and Prison Staff in the Execution Chamber

In August 2023, Alabama released the first-ever exe­cu­tion pro­to­col for nitro­gen hypox­ia, an untest­ed exe­cu­tion method in which pris­on­ers will be put to death by suf­fo­ca­tion as they are forced to breathe pure nitro­gen gas. Alabama’s heav­i­ly redact­ed pro­to­col pro­vides that pris­on­ers will be fit­ted with a mask and breath­ing tube to con­trol the gas, which will slow­ly deprive them of oxy­gen. However, use of this untest­ed method may also pose dan­gers to spir­i­tu­al advi­sors and prison staff in the execution chamber.

In 2022, the Supreme Court ruled in Ramirez v. Collier that death-sen­tenced pris­on­ers have a right to the assis­tance of spir­i­tu­al advi­sors in the exe­cu­tion cham­ber under fed­er­al law, a right which includes per­mit­ting advi­sors to touch the pris­on­ers and pray aloud dur­ing the exe­cu­tion. The peti­tion­er in that case, John Henry Ramirez, was exe­cut­ed by lethal injec­tion on October 5, 2022 after his pas­tor laid a hand on his chest and recit­ed a prayer. In its rul­ing, the Court described cen­turies of tra­di­tion of reli­gious lead­ers min­is­ter­ing to the con­demned before and dur­ing their exe­cu­tions. ​“Being present, being there, stand­ing with those who are oppressed is one of the most impor­tant things we can do,” says Reverend Melissa Potts-Bowers, who min­is­tered to Michael Tisius of Missouri dur­ing his exe­cu­tion on June 6 of this year. ​“Remaining in that cham­ber is one of the most impor­tant priv­i­leges for us to protect.”

However, Alabama’s recent­ly pub­lished exe­cu­tion pro­to­col may affect that right by per­mit­ting spir­i­tu­al advi­sors in the cham­ber only if they accept the risk of harm to them­selves dur­ing the exe­cu­tion. The pro­to­col states that ​“no spir­i­tu­al advi­sor or alter­nate spir­i­tu­al advi­sor shall be allowed in the exe­cu­tion cham­ber unless they review and sign the spir­i­tu­al advi­sor nitro­gen hypox­ia acknowl­edge­ment form.” The acknowl­edge­ment form advis­es in bold:

Even a two-foot range could expose spir­i­tu­al advi­sors and staff to severe risk. Alabama’s pro­to­col does not men­tion any waiv­er or form for prison staff assist­ing in exe­cu­tions, but con­tains rules for staff that acknowl­edge the dan­ger of the gas. The pro­to­col holds that no staff mem­ber may enter the cham­ber unless the fol­low­ing cri­te­ria are sat­is­fied: a wall-mount­ed dis­play show­ing at least 19.5% oxy­gen in the atmos­phere, a staff mem­ber observ­ing the door out­side ​“from a safe dis­tance,” and an addi­tion­al staff mem­ber stand­ing at the door to ​“ensure the safe­ty” of any staff engag­ing with the gas sys­tem. Alabama’s exe­cu­tion pro­to­col for the elec­tric chair also dis­cuss­es safe­ty risks, pro­hibit­ing spir­i­tu­al advi­sors and staff from the cham­ber entire­ly while elec­tric­i­ty is flowing.

Nitrogen gas has nev­er been test­ed in an exe­cu­tion set­ting but has caused seri­ous injury and death in indus­tri­al acci­dents. According to the Occupational Safety and Health Administration (OSHA), four­teen peo­ple died of nitro­gen asphyx­i­a­tion in the work­place between 2012 and 2020. In 2021, a nitro­gen leak at a poul­try plant in Georgia killed six peo­ple and hos­pi­tal­ized eleven. Liquid nitro­gen used as a refrig­er­ant leaked into the air, where it vapor­ized into a fog that sur­round­ed hun­dreds of employ­ees. Alabama’s pro­to­col appears to require pre­ven­ta­tive mea­sures by staff such as review­ing ​“train­ing mate­ri­als on dan­gers and haz­ards asso­ci­at­ed with nitro­gen gas in the work­place,” visu­al inspec­tion of the mask and gas can­is­ters, and lis­ten­ing for the sound of a gas leak. However, the pro­to­col pro­vides no guar­an­tee of safe­ty for per­sons in the death cham­ber, nor does it address how the State will pre­vent the gas escap­ing the cham­ber and affect­ing wit­ness­es in the event of an acci­dent. According to anes­the­si­ol­o­gist Joel Zivot, nitro­gen gas ​“is dan­ger­ous to any­one in the vicinity.” 

In the past ten years, as states strug­gled to pro­cure lethal injec­tion drugs, Alabama, Oklahoma, and Mississippi all autho­rized the use of nitro­gen gas as an alter­na­tive method of exe­cu­tion. In 2018, Alabama required each death-row pris­on­er to elect either lethal injec­tion or nitro­gen hypox­ia as their pre­ferred method. While Alabama still had a sup­ply of drugs for lethal injec­tion, the State con­duct­ed a string of three botched lethal injec­tion exe­cu­tions in 2022, result­ing in a tem­po­rary pause on exe­cu­tions. Two of the men, Alan Miller and Kenneth Smith, sur­vived the exe­cu­tion attempts. The State resumed exe­cu­tions ear­li­er this year and asked the Alabama Supreme Court in August to set the first nitro­gen hypox­ia exe­cu­tion date, for Mr. Smith, releas­ing its pro­to­col along­side the request. Mr. Smith’s attor­neys filed an oppos­ing motion argu­ing that he should not be required to be the ​“test sub­ject” for a nov­el and untest­ed execution method.