The United States is dealing with a drug shortage – a legal injection drug shortage, that is. In response, states where capital punishment is still practiced are having to come up with new ways of killing people. Earlier this week, Oklahoma announced that it will start using nitrogen gas for all its executions moving forward, making it the first US state to do so. Critics worry that the method is still unproven as an ethical alternative, and that Oklahoma has yet to devise a protocol for the procedure.
Understandably, pharmaceutical companies don’t want to be associated with drugs that kill people, even if those drugs are used to kill people convicted of a capital offence. Companies like Pfizer, for example, have gone out of their way to ensure their products aren’t used in lethal injections. The resulting death-drug shortage is leading some states to revive older execution methods; in Alabama, Tennessee, and Virginia, legislators have proposed the re-introduction of the electric chair, and in Utah, the state government has brought back the firing squad. As barbaric as those sound, some prisoners have said they’d rather be shot by firing squad than suffer the horrors of a botched lethal injection.
In 2015, Oklahoma approved nitrogen asphyxiation as a backup killing method after a botched execution in which the wrong drug was used to kill death row inmate Charles Warner earlier in the year. Now, as the Washington Post reports, Oklahoma says it will use nitrogen for all its executions, making it the first US state to do so.
This idea has actually been around for a while. Inert gas asphyxiation, or hypoxia, whether it be from nitrogen, argon, helium, and methane, reduce concentrations of oxygen in the blood when a person is subjected to an oxygen-poor environment. Around 10 people are accidentally killed each year in the US from nitrogen asphyxiation, typically people working in industrial plants, labs, and medical facilities. Nitrogen gas is colorless and odourless, making it a dangerous and difficult-to-detect substance when there isn’t enough oxygen to go around. Nitrogen gas is often used to slaughter animals such as chickens.
Trouble is, nitrogen gas has never actually been “tested” on humans, so we’re not entirely sure how smoothly these executions might go. According to the US Chemical Safety and Hazard Investigation Board, when atmospheric concentrations of oxygen are less than 12.5 per cent, people experience poor judgment and coordination, and impaired breathing that can cause permanent heart damage, nausea, and vomiting. When oxygen levels are less than 10 per cent, nitrogen gas causes a complete inability to move, loss of consciousness, convulsions, and eventually death.
These horrible symptoms aside, a 1995 National Review article titled “Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation” deemed the technique ethical, and recommended that states use it to kill prisoners. A BBC documentary called “How to Kill a Human Being” reached a similar conclusion, as did Slate writer Tom McNichol in his 2014 article, “Death by Nitrogen.”
But given Oklahoma’s poor track record, there’s legitimate concern the state will somehow screw this up. Back when EPA head Scott Pruitt was the state’s attorney general, he said Oklahoma execution officials were “careless, cavalier, and… dismissive of established procedures.” Dale A. Baich, a lawyer who represents nearly two dozen Oklahoma death-row prisoners, told the Washington Post that:
This method has never been used before and is experimental. Oklahoma is once again asking us to trust it as officials ‘learn-on-the-job,’ through a new execution procedure and method. How can we trust Oklahoma to get this right when the state’s recent history reveals a culture of carelessness and mistakes in executions?
Indeed, nitrogen has never been used in this way before, at least not that we know of, so no protocol exists for its use in executions. Apparently all that’s required is a gas mask and a container of nitrogen, according to a financial analysis prepared by Oklahoma state legislators. Obviously there’s got to be more to it than that. Of course, there’s always the option to abolish the death penalty, which more than half of the world’s nations have done.