Alan Eugene Miller, who killed three men in workplace shootings in 1999, was scheduled to be the first person executed by nitrogen hypoxia–a new method never before used for the death penalty–on September 22. However, Alabama said a week prior to Miller’s execution that it was not ready to proceed with the procedure and would instead use lethal injection HTML1.
On September 19 the U.S. District Court for the Middle District of Alabama issued a preliminary injunction barring the state from killing Miller by any means other than nitrogen hypoxia, essentially amounting to a stay of execution until the state was ready to administer the new method. Three academics filed a human right complaint on behalf of Miller. It was about Alabama’s use lethal inject ,, which has been criticized for inhumane treatment and causing excessive suffering.
Less than three hours after Miller’s death warrant expired at midnight (at midnight), the U.S. Supreme Court granted Alabama’s appeal against the injunction, and ruled that execution could proceed. But in the early hours of September 23, the state announced that it had called off the execution, saying it was unable to access Miller’s veins in time. It is expected that the execution will be rescheduled.
The case raises many questions: What is nitrogen hypoxia and how can it be prevented? What are the requirements to administer it? Is it necessary to create a new method of execution? What’s wrong with lethal injection, anyway?
Scientific American spoke with experts in anesthesiology, law and capital punishment to find out.
What is nitrogen hypoxia?
Nitrogen Hypoxia is a method to suffocate a person by forcing them into pure nitrogen and starving them until death. Joel Zivot, Emory University associate professor of anesthesiology, said that “nitrogen hypoxia” is not a medical term despite its scientific name. He co-authored the human rights complaint.
” There is nitrogen gas–that is a real thing. Zivot says that hypoxia is a sign of low oxygen. “But ‘nitrogen hypoxia’ is a made-up two-word expression meant to sound like you’re on the bridge of the starship Enterprise,” he says, referring to the spaceship of Star Trek fame. Zivot suggests calling the procedure “nitrogen gas execution .”
Nitrogen is an inert gas that makes up 78 percent of the air we breathe, passing in and out of the body harmlessly with every breath. Pure nitrogen can be inhaled and not know it. However, their cells and organs will slowly begin to fail to receive the oxygen they need and will soon stop functioning. According to Zivot, a person who is starved of oxygen will die within minutes.
Where did the idea for nitrogen hypoxia come from?
Then representative Mike Christian of Oklahoma first proposed using nitrogen gas as a potential form of execution in 2014, after the state came under fire for multiple botched execution attempts using lethal injection. Michael Copeland, then an assistant Professor of Criminal Justice at East Central University, Ada, Okla., co-authored a whitepaper on the subject with two colleagues.
“The entire proposal for nitrogen gas was the product of a 14-page report made by a criminal justice professor,” says Corinna Barrett Lain, a law professor at the University of Richmond, who’s writing a book on lethal injection. He is not a doctor. He has no medical training. He is not a scientist. But he knew one of the legislators.”
At the hearings that introduced the method, legislators heard stories about pilots and divers who died from inhaling pure nitrogen instead of the correct mixture of nitrogen and oxygen. Because there is not much medical research on nitrogen gas, no scientific evidence was presented. It is unclear how long this process would take or how severe the effects would be on the individual.
“There is a claim, that I think is baseless, that nitrogen gas inhalation would cause a death that would be peaceful and not cruel,” Zivot says. “There is no evidence for any .”
A state does not have to prove that a method of execution isn’t “cruel or unusual punishment,” as the Eighth Amendment to the U.S. Constitution states. Lain says. She says that instead, “the burden is on condemned inmate to prove that it is torturous rather that the burden being on state to show it’s not,” she said. “So the state can make whatever it wants .”
Why has there been a holdup in Alabama’s use of this new method?
The Alabama execution was not halted by the question of nitrogen hypoxia, which is cruel and unusual. It is more likely that logistics is the problem.
“Alabama has not yet developed a protocol for the new execution method. Alabama has yet to specify how it will be executed. Robert Dunham, executive director at the Death Penalty Information Center (a national nonprofit that provides analysis and information on death penalty issues), says Alabama has not trained its personnel in conducting a nitrogen hypoxia execution. “And, as far as anyone knows, no one has considered that execution personnel could be in danger if they don’t execute it properly
There are two ways to execute a gas execution. The state can build a gas chamber, such as those used in executions with hydrogen cyanide (the method by which the last gas execution in the U.S. was conducted in Arizona in 1999), or it could use a specialized gas mask. If a mask is used, it must be sealed tightly so that inmates cannot breathe oxygen and prolong their deaths. It also must seal tightly so that witnesses and the execution team are not exposed to dangerous levels of the gas.
“Nitrogen has no color and is odorless. This is what led the Oklahoma legislature think that this would be quick and painless. However, people didn’t know they were being poisoned at deep or high altitudes–those exact factors could make it potentially deadly if gas leaks into the areas where the execution team was,” Dunham states.
What’s wrong with using lethal injection?
The reason nitrogen hypoxia is now allowed in Oklahoma, Alabama, and Mississippi despite these concerns is that many problems have arisen over the past decade with lethal injection.
Lethal injection has been the standard method of execution in the U.S. since the 1990s. The original three-drug protocol was developed by an Oklahoma state medical examiner and included the anesthetic sodium thiopental, a paralytic drug called pancuronium bromide, and potassium chloride, which is supposed to stop the heart within minutes. Dunham called the latter “chemical fire .”
Doctors, drug manufacturers and others have protested lethal injection since its inception. They don’t want their products or techniques to be used to kill rather than heal. In 2011 the sole U.S. manufacturer of sodium thiopental stopped producing it. The following year a ruling by the U.S. District Court for the District of Columbia essentially declared that the U.S. Food and Drug Administration could no longer allow the drug to be imported from overseas for the purpose of execution.
States were left scrambling to find a new method of execution. Some states switched to using one drug, the barbiturate Pentobarbital. This is an anticonvulsant and sedative that is often used to treat epilepsy or before surgery. It is also used in both human and veterinary euthanasia. Some states have replaced sodium thiopental by the benzodiazepinemidazolam. This is also used to sedate patients before they undergo medical procedures. Midazolam and pentobarbital do not function as pain relievers or anesthetics.
With these changes, lethal injections began to have more problems. In the case of John Marion Grant in Oklahoma, the drugs caused vomiting and full-body convulsions over the course of 15 minutes. Even more disturbing was the death of Joseph Wood III in Arizona. He gasped for almost two hours before he died. Recently, Alabama’s executioners for Joe Nathan James, Jr., and Doyle Lee Hamm were unable to insert IV lines to administer the drugs. This caused numerous punctures and incisions to James’s and Hamms’s skins, resulting in delays in James’s execution and even halting Hamm’s execution altogether.
” The lethal injection process created a myth in many respects that what you had was a simple, medical procedure in which the prisoner went to sleep,” Dunham states. “That created a false separation between the reality and public perceptions of capital punishment
Experts now believe the paralytic used in original three-drug protocol masks the torture inmates were going through. Zivot and others have performed more than 200 autopsies on people killed by lethal injection using thiopental, pentobarbital or midazolam. NPR’s investigation found that many of these autopsies revealed evidence of pulmonary embolism, a condition that causes a feeling like you are drowning.
“Instead slipping to sleep and dying they drowned in their own secretions, sometimes masked with a paralytic,” Zivot explains. “That’s actually how they were dying .”
There are several cases brought by prisoners alleging that lethal injection violates Article 8. In the highest-profile case, four Oklahoma prisoners contended that using midazolam constituted cruel and unusual punishment because it “fails to render a person insensate to pain.” But in a 2015 decision, the U.S. Supreme Court ruled 5-4 against the inmates, in part because, the justices said, they had failed to identify a less painful option.
What other execution methods are available?
States are now looking at other execution methods, such as firing squad, electrocution and pure nitrogen (or hydrogen cyanide) due to increased scrutiny of lethal injection. With the exception of Tennessee, where there have been five executions by electrocution since 2018, no other methods have been used for nearly a decade. It doesn’t look like that will change given the problems that Miller faced.
When Lain was asked what the best way to execute someone, she replied that it would be the firing squad. She says that death by firing squad is almost instantaneous. “That’s certainly better than being electrocuted for five or six minutes or being gassed to death for six to 10 minutes or being slowly suffocated under a veneer of peacefulness for 10 to 20 minutes.”