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. But a week before his execution, the state of Alabama admitted that he was not prepared to go ahead with the procedure and would use lethal injection instead.
On September 19, the United States District Court for the Middle District of Alabama issued a preliminary injunction prevent the state from killing Miller by any means other than nitrogen hypoxia, which is essentially a stay of execution until the state is ready to administer the new method. Earlier this month, three academics presented a human rights complaint with the United Nations on behalf of Miller regarding the use of lethal injection in Alabama, which has been criticized as inhumane for causing excessive suffering.
Less than three hours before Miller’s death sentence was due to expire at midnight, the US Supreme Court. granted Alabama appeal to the precautionary measure and decided that the execution could proceed. But in the early hours of September 23, the state announced that it had called off the execution, saying it could not access Miller’s veins in time. The execution is expected to be rescheduled.
The case raises numerous questions: What is nitrogenous hypoxia? What is required to manage it? Why is a new form of execution necessary? And what’s wrong with lethal injection?
american scientist he spoke to experts in anesthesiology, law and capital punishment to find out.
What is nitrogen hypoxia?
Nitrogen hypoxia is a method of asphyxiating a person by forcing them to breathe pure nitrogen, depriving them of oxygen until they die. Despite its scientific-sounding name, “nitrogen hypoxia” isn’t an actual medical term, says Joel Zivot, associate professor of anesthesiology at Emory University, a co-author of the human rights complaint.
“There’s nitrogen gas, that’s a real thing. There is hypoxia, that means little oxygen”, says Zivot. “But ‘nitrogen hypoxia’ is a made-up two-word expression meant to sound like you’re on the starship bridge Business”, he says, referring to the spaceship of star trek fame. Instead, Zivot recommends calling the procedure “nitrogen gas run.”
Nitrogen is an inert gas that makes up 78 percent of the air we breathe and harmlessly moves in and out of the body with each breath. A person can breathe pure nitrogen and not immediately realize there is a problem, but their cells and organs are slowly being deprived of the oxygen they need to function and will quickly begin to break down. Someone deprived of oxygen will pass out within minutes and die soon after when the heart stops beating, according to Zivot.
Where did the idea of nitrogen hypoxia come from?
Then-Rep. Mike Christian of Oklahoma first proposed the use of nitrogen gas as a possible form of execution in 2014, after the state came under fire for multiple failed execution attempts by lethal injection. The idea came in part from Michael Copeland, then an assistant professor of criminal justice at East Central University in Ada, Oklahoma, who co-authored a white paper on the subject with two of his colleagues at the university.
“The whole nitrogen gas proposal was the product of a 14-page report by a criminal justice professor,” says Corinna Barrett Lain, a law professor at the University of Richmond, who is writing a book on lethal injection. He is not a doctor. She has no medical training. He is not a scientist. But he knew one of the legislators.”
At hearings where the method was introduced, lawmakers heard stories of pilots and divers who died when they accidentally breathed in pure nitrogen instead of the proper mixture of nitrogen and oxygen. No scientific evidence was presented because there is little medical research on death from nitrogen gas. It is unclear exactly how long the process would take or how much the person would suffer.
“There’s a claim, which I believe is unfounded, that inhalation of nitrogen gas would cause death, that it would be peaceful and non-cruel,” Zivot says. “There is no evidence of any of that.”
There is no requirement for a state to show that a method of execution is not “cruel and unusual punishment,” as defined by the Eighth Amendment to the US Constitution, Lain says. Instead, “the burden is on the convicted prisoner to show that it is torture rather than the burden on the state to show that it is not,” she says. “Then the state can invent whatever it wants.”
Why has there been a delay in Alabama’s use of this new method?
Alabama’s execution has not stopped over the question of whether nitrogen hypoxia would be cruel and unusual. Instead, there is most likely a problem with logistics.
“Alabama does not have a protocol [for the new execution method] even. Alabama does not say how it will be carried out. Certainly, Alabama has not trained its staff … on how to carry out a nitrogen hypoxia execution,” says Robert Dunham, executive director of the Death Penalty Information Center, a national nonprofit organization that provides information and analysis on issues related to the death penalty. “And as far as anyone can tell, no one has considered the potentially lethal danger to enforcement personnel if [they] Don’t do it right.”
There are two ways to manage a gas run. The state can build a gas chamber, like those used in hydrogen cyanide executions (the method by which the last gassed execution in the US was carried out in Arizona in 1999), or it could wear a specialized gas mask. used, it must have an airtight seal so that the prisoner cannot breathe oxygen and prolong her death, and so that the execution team and bystanders are not exposed to life-threatening levels of the gas.
“Nitrogen is colorless and odorless, and the same thing that led the Oklahoma legislature to think this would be quick and painless, the fact that people didn’t know they were being poisoned at depth or at height, those same factors. it could become potentially lethal if the gas leaks into areas where the execution team was,” says Dunham.
What’s wrong with using lethal injection?
The reason nitrogen hypoxia was initially proposed, and despite these concerns, is now licensed in Oklahoma, Alabama, and Mississippi, is because numerous problems with lethal injection have arisen over the past decade.
Lethal injection has been the standard method of execution in the United States 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 in a matter of minutes. Dunham described the latter as “chemical fire”.
Doctors and drugmakers have protested lethal injection since its inception, because they don’t want their products and techniques to be used to kill rather than cure. In 2011, the only US manufacturer of sodium thiopental stopped producing it. The following year a judgment of the US District Court for the District of Columbia essentially declared that the US Food and Drug Administration could no longer allow the drug to be imported from abroad for the purpose of enforcement.
These changes left states scrambling to find another method of execution. Some switched to using a single drug, the barbiturate pentobarbital, which is a sedative and anticonvulsant often used before surgeries or to treat epilepsy. It is also commonly used in veterinary and human euthanasia. Other states have replaced sodium thiopental with the benzodiazepine midazolam, which is also used as a sedative before medical procedures. Neither pentobarbital nor midazolam work as an anesthetic or pain reliever.
With these changes, problems during lethal injections began to crop up more frequently. In the case of John Marion Grant in Oklahoma, the drugs caused vomiting and full-body seizures over the course of 15 minutes. In an even more horrific event, in Arizona, Joseph Wood III huffed and puffed for nearly two hours before he died. More recently, the people who carried out the executions of Joe Nathan James, Jr. and Doyle Lee Hamm in Alabama were unable to insert the intravenous lines to administer the drugs. This resulted in numerous puncture wounds and skin incisions for James and Hamm, delaying the former’s execution for hours and stopping the latter’s altogether.
“The lethal injection process, in many ways, created the myth that what you had was a simple medical procedure where you put the prisoner to sleep,” says Dunham. “That created a false distance between the reality of capital punishment and the public perception of capital punishment.”
Experts now believe that the paralytic used in the original three-drug protocol masked the torture the inmates were experiencing. Zivot and others have made more than 200 autopsies on people killed by lethal injection with thiopental, pentobarbital, or midazolam. An NPR investigation of these autopsies found that most of the inmates’ lungs showed evidence of pulmonary edema, the accumulation of fluid that produces a sensation of suffocation.
“Instead of falling asleep and dying, they would drown in their own secretions and suffocate to death, sometimes masked by a paralytic,” says Zivot. “That is, in fact, how they were dying.”
There have been court cases in several states brought by prisoners alleging that lethal injection violated the Eighth Amendment. In the most high-profile case, four Oklahoma inmates argued that the use of midazolam constituted cruel and unusual punishment because it “does not make a person lose their sense of pain.” But in a 2015 decision, the US Supreme Court ruled 5-4 against the inmates, in part because the justices said they had not identified a less painful option.
What other execution methods are available?
Increased scrutiny over lethal injection has led states to consider other methods of execution, including electrocution, firing squad, and gas (either hydrogen cyanide or pure nitrogen). 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. Given the issues that arose during the Miller case, it doesn’t look like it’s going to change any time soon.
When asked what would be the most humane way to execute someone, Lain’s answer is the firing squad. “Death by firing squad is almost instantaneous,” she says. “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 guise of peace for 10 to 20 minutes.”