Alabama’s experiment with death

Alabama will soon attempt to suffocate a death row inmate.

It could be several months away. Maybe longer. And it’s never been done to a human being before.

But despite that — and despite Alabama’s record of incompetence in carrying out executions — it’s almost certain the state will get to try the new execution process, known as nitrogen hypoxia.

And it’s just as certain it will be a grisly scene.

According to a partially redacted protocol filed in a federal lawsuit on Aug. 25, the Alabama Department of Corrections proposes putting a mask over a condemned inmate’s face and making them breathe nitrogen gas for 15 minutes, or for five minutes after the inmate flatlines, whichever comes first.

Nitrogen has been used to euthanize small animals. But the American Veterinary Medical Association (as of 2020) generally discourages the use of the gas. For lab animals, the standards say that one must maintain an oxygen concentration under 2% to achieve unconsciousness and death, and “achieving that concentration is difficult.” It strongly recommends giving the creature anesthesia first before exposing them to nitrogen.

Alabama shows considerably less care toward the people it proposes to execute this way. The state protocol does not say whether staff will sedate or anesthetize inmates before execution begins. It says a pulse oximeter will be attached to the mask to monitor oxygen levels but doesn’t explain what will happen should something go wrong.

Who came up with this? An Oklahoma state representative got the idea from a BBC documentary. Three people who are not scientists wrote a report justifying the method. Evidence presented at a legislative hearing on the subject included videos of teenagers sucking helium out of balloons and passing out.

Oklahoma has endorsed the method (though it hasn’t yet carried out a nitrogen execution). So did Alabama and Mississippi.

And sure, medical professionals are very reluctant to euthanize nonhuman animals with nitrogen. But the U.S. Supreme Court is almost certain to allow it.

In 2015’s Glossip v. Gross, Justice Samuel Alito wrote that people protesting a method of execution not only have to prove that it would cause undue pain — execution methods don’t have to conform to medical standards of care, he added — they have to present a “practical” alternative to the court.

Set aside the ethical rot of forcing a person to choose a way to die. (History will not be kind to that.) Legally, this is a lot for a condemned inmate to overcome. A judge could decide that a person awaiting execution hadn’t proven that death by crocodile would be more painful than lethal injection. Into the pit of crocodiles they’d go.

That high bar went even higher in 2019’s Bucklew v. Precythe. In that case, Justice Neil Gorsuch rejected Missouri death row inmate Russell Bucklew’s request to die by nitrogen instead of lethal injection, writing that Bucklew had not proven that nitrogen gas was less painful. (Note that Gorsuch didn’t rule out nitrogen hypoxia as a method. He just said Bucklew couldn’t prove that it was better than what the state had in place.)

The justice also wrote that the Eighth Amendment’s ban on cruel and unusual punishment only applied to execution methods that added additional levels of terror or shame and did not guarantee a painless death.

So the U.S. Supreme Court will almost certainly let Alabama execute people by nitrogen hypoxia.

Supporters sold it as a more humane method of dying. The sponsor of the bill in Alabama allowing nitrogen hypoxia, Sen. Trip Pittman, R-Montrose, said the method would lead to “quick unconsciousness.” Rep. Jim Moody, R-Odenville, who handled the bill in the House, cited its use in assisted suicides and said there was “no evidence” of things going wrong.

It’s the same argument used whenever a new form of execution is introduced. Like Alabama’s current methods, lethal injection and (if a condemned inmate chooses it) the electric chair.

Neither is even close to being humane.

In 1983, in its first execution in 18 years, Alabama strapped John Louis Evans III into an electric chair and set him on fire. Witnesses reported flames shooting from behind his mask and sparks from his knee. Officials present had to send two more currents through his mangled body to kill him.

“John Evans was burned alive tonight,” his attorney said.

Scenes like this pushed states to switch to lethal injection in the 1990s. But you don’t have to leave Alabama for examples of the suffering involved in that method.

Midazolam, a sedative used in the process, was never designed to create full unconsciousness. Ronald Bert Smith coughed and heaved during his execution in 2016. The next year, Torrey McNabb raised his right arm 20 minutes into the execution and grimaced before falling back onto the gurney.

Since 2018, the state has conducted at least four separate executions (including one involving a person with terminal cancer) where medical staff punctured inmates for hours trying to find a vein.

The “humanity” argument is like painting Mickey Mouse on a guillotine. There is no way to make death more humane. An execution is an act of violence. The only reason the state wants to implement this new method of execution is to keep executing people.

And to keep doing that, our government, which has burned people alive and prodded them with needles until they bled out on a gurney, will embark on an experiment with death, with incarcerated people as the subjects and the federal judiciary nodding in approval.

And once again, Alabama will make a human being’s last minutes on Earth as painful as it can.

Brian Lyman is the editor of Alabama Reflector. He has covered Alabama politics since 2006, and worked at the Montgomery Advertiser, the Press-Register and The Anniston Star. His work has won awards from the Associated Press Managing Editors, the Alabama Press Association and Robert F. Kennedy Center for Human Rights. He lives in Auburn with his wife, Julie, and their three children.

Alabama Reflector is part of States Newsroom, an independent nonprofit website covering politics and policy in state capitals around the nation.

This article originally appeared on Montgomery Advertiser: Alabama’s experiment with death