The revelation was made Monday at a court hearing on inmate Alan Miller’s request to block his scheduled Sept. 22 execution by lethal injection. Miller claims prison staff lost paperwork he returned in 2018 requesting nitrogen hypoxia, an execution method the state has approved but never used. James Houtz, the state’s deputy attorney general, said the method could be available as soon as next week. However, the final decision on when to use the new method will rest with the state’s corrections commissioner. Here is what is known about nitrogen hypoxia:
Has it ever been used in a performance?
No state has used nitrogen hypoxia to carry out a death sentence. In 2018, Alabama became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. Some advocates have felt that nitrogen hypoxia would be a simpler and more humane method of execution.
How would it work in a run?
This undated photo shows inmate Alan Eugene Miller, who was convicted of a workplace murder that killed three men in 1999. Miller says he previously requested that nitrogen hypoxia be used in his execution. (Alabama Department of Corrections/The Associated Press) Nitrogen makes up 78 per cent of the air inhaled by humans and is harmless when inhaled with oxygen. The theory behind the execution method is that changing the composition of the air to 100 percent nitrogen would deprive the individual of the oxygen needed to maintain bodily functions. Tripp Pittman, a former Republican congressman in Alabama who sponsored the 2018 legislation, thought it would be similar to how airline passengers pass out when a plane decompresses. The state has released little information about the proposed method. Most of the available information comes from court proceedings. The Alabama Department of Corrections told a federal judge last year that it had completed a “system” for using nitrogen gas, but did not describe it. During a Sept. 11 court hearing, an attorney for the state said they asked Miller if he would agree to a mask, an indication the state may intend to place a face mask over the inmate’s nose and mouth.
Why is the new method being considered?
After the death penalty was reinstated in the US in 1976, most executions were carried out by electrocution, with some by gas chamber, hanging or firing squad. Lethal injection was first performed in 1982 and became the dominant method, with officials believing it to be a more humane and effective method. According to the non-profit Death Penalty Information Center (DPIC), 1,370 people have been executed by lethal injection, representing 88 percent of all executions since 1976. States have begun to propose nitrogen hypoxia as an alternative method of execution because of the difficulty of obtaining lethal injection drugs, as in recent years drug companies and their shareholders have been reluctant to sell their product to states for use in the death penalty. Other states have even reconsidered the possibility of using the squad or electric shock, although legal challenges have prevented these methods from being used again.
What are the concerns?
Critics have likened the untested method to human experimentation. “It’s completely untested,” said Robert Dunham, executive director of the Death Penalty Information Center. No state has released a protocol outlining how it would work. While advocates have argued it would be quick and painless, Dunham noted that states once said the same thing about the electric chair. American Veterinary Medical Association euthanasia guidelines say that inert gas hypoxia is acceptable, under certain conditions, for euthanizing chickens, turkeys, and pigs, but is not recommended for other mammals such as rats.
What happens next?
Alabama is working to finalize a protocol for the use of nitrogen hypoxia. Steps should be added to the existing state protocol outlining the procedures for an execution using the electric chair or lethal injection. He said Alabama’s prison commissioner has the final say on when to allow its use. If the state decides to proceed with the method, an appeal is expected.
What is the state of the death penalty in the US?
Currently, 27 states allow the death penalty, although the governors of three of them have issued moratoriums on the practice while in office. Of the remaining 24, only a small number have consistently carried out executions in recent years. Most states have seen the consequences of overzealous or flawed prosecutions, with 185 inmates “released from death row on evidence of their innocence,” according to the DPC. After the death penalty was reinstated in the US in 1976, the most executions carried out in one year occurred in 1999, with a total of 98 inmates. The total has been fewer than 40 every year since 2013, falling to a record low of 11 in 2021. So far this year, a total of 10 executions have taken place in Alabama, Florida, Missouri, Oklahoma and Texas. During the administration of Donald Trump, there have been 13 executions of inmates on federal death sentences, the first at the federal level since 2003. Attorney General Merrick Garland of President Joe Biden’s administration ordered a halt to federal executions last year pending a full review of the practice could be completed.
