The Appeal Podcast: States Turn To Nitrogen Gas For Executions, Despite Serious Concerns

Facing legal challenges and a shortage of drugs for lethal injections, Oklahoma was the first state to announce a plan to use nitrogen to execute prisoners on death row. Mississippi and Alabama soon followed, though none of the states has tried it yet. Critics say the science behind using nitrogen to kill people is spotty at best, and there’s no way to know if it will be as painless as supporters presume. Today we are joined by Appeal staff reporter Lauren Gill to discuss the questions around nitrogen gas and the continuing search for ways to end human life behind bars.

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Transcript

Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow The Appeal podcast at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcasts. 

As the chemicals needed to carry out lethal injections get more and more difficult for states to procure, a handful of states are turning to nitrogen gas to kill prisoners on their death row. The science of this as a quote unquote “humane” alternative is nonexistent and many advocates say the method is more barbaric than the already barbaric system it is replacing. Today we are joined by appeal writer Lauren Gill to discuss the uptick in plans to use nitrogen gas and what this says about the creative and elaborate ways our system finds to end human life.

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Lauren Gill: People want to see who is coming up with these execution methods and the more secrecy you have, you know, the more states are able to operate under the table, you know, we just don’t know what’s happening and this could lead to painful executions, botched executions. So it’s really important that the states are very transparent with everything that goes into this process. 

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Adam: Lauren, thank you so much for joining us on The Appeal. 

Lauren Gill: Thanks for having me Adam.

Adam: So you wrote a real a light beach read entitled “Using Nitrogen Gas For Executions is Untested and Poorly Understood. Three States Plan to Do It Anyway,” which really gets into the latest and sort of grittiest details about the extent to which there are people in the year 2019 who are still thinking of ways to kill people. You write about how they are trying to now pivot to the use of nitrogen gas because a lot of the previous chemicals for lethal injection and are now difficult to find or have ceased manufacture by companies, specifically companies in Europe. Can you talk to us about what these forces are and specifically, I know it’s Oklahoma, Mississippi, Alabama, but in April 2015 Oklahoma became the first state to authorize the use of nitrogen gas. Can you talk about why there’s this movement for nitrogen gas? Who’s kind of behind it and what the sort of consensus is around its efficacy? It seems weird to debate sort of how humane you kill someone but for the purposes of this, can we talk about how it’s being marketed by government officials versus what the reality is?

Lauren Gill: Yeah, sure. So nitrogen gas was first introduced as an execution method in 1995 by a technology consultant who wrote an article for The National Review sort of suggesting it as an execution method. So then fast forward to 2014 and Oklahoma severely botched the execution of Clayton Lockett. He died 43 minutes after being administered lethal drugs. It was a severely botched execution. He arrived on the table, at one point he rose up and said something was wrong. He eventually died of a heart attack. But for that execution, Oklahoma was using a never before used protocol of drugs, which included midazolam, which the state had never used before. Midazolam is a sedative and it’s also been a subject of a lot of controversy lately because it has failed in some situations to render people unconscious who are then left to feel this drug that is meant to stop the heart, you know, coursing through their veins. Some people have said it like feels like fire. So anyway, after that execution, executions in the state were put on hold while there was a review of Oklahoma’s lethal injection protocol. In 2015, Representative Mike Christian, he watches a documentary on the BBC and that documentary is called How to Kill a Human Being and it features a conservative politician turned journalist named Michael Portillo exploring execution methods used in the United States. At the end, he sort of offers an antidote to the previous ones by exploring nitrogen gas. And at the end of that program, he deems it the perfect killing machine. So Christian watches the documentary and then he enlists one of his friends to explore the use of nitrogen gas for executions. And then he brings on two other people, none of them have careers in medicine or science and they write up this 14 page report. There’s really no evidence of original research in the report. They draw on things like a 1963 study exploring humans breathing nitrogen gas through a mask and The National Review article. So at the end of this report, they recommend that nitrogen is a simple and humane way to kill people and they recommend that it be used. The Oklahoma legislature draws on this report somewhat. It authorizes executions by nitrogen gas should lethal injection drugs be otherwise unavailable or the Supreme Court rules it unconstitutional. And then in 2018 the state announces that they are having a bunch of trouble finding execution drugs. One corrections official says that, you know, they’ve searched the Indian subcontinent and have had no success finding these drugs, which really inspires a lot of confidence in the drugs that people are using for executions. And they announced that they’re going to switch entirely to nitrogen. So that’s where Oklahoma is at now. And then in 2017 Mississippi authorized the use of the gas if lethal injection is ruled unconstitutional or drugs are otherwise unavailable. And Alabama follows in 2018 also making it an option for prisoners.

Adam: So this ironically named Mike Christian, he sort of kind of the one man propagandist, he said, quote, the process is “fast and painless. It’s foolproof.” Now, one of the criticisms people make of these increasingly clever ways of killing people is that the quote unquote “humanity” of the execution method is really about making the observer feel good about themselves. Because for the most part, we don’t have any way of gauging the degree to which someone’s in pain. We only have a way of gauging if they appear like they’re in pain. So one of the steps in the process historically has been to sort of sedate the person. Can we talk about that as a sort of factor here and to what extent — you say there’s not really any scientific evidence at all — to what extent is it even really knowable how much suffering one is in once you introduce the concept of sedatives?

Lauren Gill: Right. Well, you know, nitrogen has never before been used in executions so there’s a bunch of questions that are surrounding, you know, how this method is actually going to be carried out in reality. Now, one thing that has been raised to me is will prisoners be distributed sedatives before they’re executed to sort of calm them down? But then that again, you know, introduces the same thing that we saw created problems with lethal injection with the first sedative, you know, not really being effective, but yeah, you’re right that these methods are sort of introduced and touted as more humane. But really it’s more, I guess tolerable by people who are watching it. Since nitrogen has never been used before to kill prisoners, there are tons of questions that are surrounding how this method is going to be carried out in actuality. Now we know about nitrogen used, you know, in suicides or to euthanize small animals are also in industrial accidents. But those situations are much different than, you know, what would be happening if someone is being taken to be killed? One doctor told me that, you know, while it could be effective, the theoretical situation that would need to happen for everything to be carried out perfectly, it would be really, really hard to do in real life. People can hold their breath because sort of like the scientific reasoning behind nitrogen hypoxia is that there’s not a buildup of carbon dioxide in the body, that would cause panic. But then again, you know, if you’re being executed, I mean you’re probably not going to be cooperating and, you know, breathing in deeply, in industrial accidents people don’t know that they’re breathing in nitrogen and then, you know, all of a sudden they’re rendered unconscious and they die and suicide people are more cooperative as well. So yeah, there’s just a bunch of questions that need to be answered by the states before they carry out this method.

Adam: To what extent, cause the whole conversation is obviously completely macabre right? Like to what extent do activists you’ve spoke to or anti-death penalty activists, to what extent do they balance the line between like having an earnest conversation about the quote unquote “most humane” way of killing someone versus showing the inhumanity of the method as a means to eventually lead to abolition of the death penalty in general, because obviously the United States is alone in the quote unquote “Western world” continuing executions in the year 2019. From people you’ve spoken to, how does one sort of negotiate the inhumanity of this without necessarily implicitly endorsing some other method? I guess I’m curious about that because the whole conversation, the whole premise of the conversation seems pretty warped to me and from people you’ve spoken to, how do they balance that and to what extent do they use this sort of non-existence of humane killing as one of the reasons why we ought to probably get rid of it?

Lauren Gill: So I didn’t actually speak to any anti-death penalty activists, but I did speak to a few people who are experts in the field and who have studied the history of execution methods. And what they said is that, you know, as you look at the execution methods over time, each one is introduced as a way to be more humane than the last one, but there’s a whole bunch of secrecy that also happens with these methods — Where people are getting the drugs? Who are the suppliers? Who are the people coming up with how they’re going to be administered? — that are really left unanswered due to a whole variety of reasons, not the least of which is that some states have enacted these secrecy laws that allow them to keep everything under wraps. One thing that was interesting that Deborah Denno, who is an expert in the history of execution methods, said that over time, you know, they keep getting worse and worse. You could think of nitrogen as the perfect execution method, and it’s possible that the states could carry this out and it could be the perfect execution method, but what’s been raised to me is that they can’t quite be trusted to do this because of what they have done in the past in terms of securing drugs or coming up with methods like lethal injection. That method was adopted from a forensic pathologist who admitted that he was an expert in dead bodies, but not an expert in getting them that way. And then we’ve seen the botched executions over the years, time after time, lethal injection has the highest rate of botched executions. Seven out of one hundred times something goes wrong. So yeah, I mean, it’s possible that this could be a perfect method, but I think history has shown that it would be naive to think that states could carry it out in the way that, you know, the public should trust them.

Adam: Yeah. So you quote one sort of expert in this field. Deborah Denno at Fordham University says, quote, “History has shown they only get worse.” Speaking about the execution methods. “They only get sloppier, they only get riskier. There will come a time when people can’t believe that we did this.” So lethal injections themselves, you said seven out of a hundred times something goes wrong, which is pretty high and that there are those who maybe argue that even just taking someone out back and shooting them is more humane than this, which speaks to the issue of is this really about the observer or the person who’s dying? So I know that the reason why they moved away was because of the lack of materials. Is nitrogen execution sort of more immune to that type of supply loss? Is that one of the perks of it that it can kind of be a sort of long term solution?

Lauren Gill: When nitrogen was adopted, people certainly made the argument that it would be much easier to procure the supplies that would be needed to carry it out for executions as opposed to lethal injection where you have to secure these drugs. Now the American Veterinary Medical Association in its handbook on euthanizing animals says that the gas needs to be purified, so it’s not like you can just use any type of nitrogen gas. And then also the states need to figure out a way to administer the nitrogen. So will that be through a mask or will it be in a vacuum chamber? Now, Oklahoma apparently has been having difficulties obtaining a device or obtaining the materials to make this device. Oklahoma DoC told me, in the beginning of this year in February, that you know, when I asked about what was going on with the protocol, they said that they’ve determined some things that are likely going to work, but the issue is that companies and manufacturers won’t sell us the appropriate technology out of fear of backlash from anti-death penalty activists. And then Attorney General Mike Hunter said that over the summer they would, they were hoping to have this device finalized. The summer has come and gone and there’s no device. And then also he said that they were going to pivot to an instate manufacturer and they hoped to have it submitted for court review by the end of the year. So we’ll see. But then, with the nitrogen gas the state has said that it has a reliable supply but it doesn’t have a specific supplier. So I asked the state’s contracted supplier Airgas, they sell industrial medical and specialty gases including nitrogen, and they actually said that they were not going to supply Oklahoma with gas for execution because it goes against their values. And then also Airgas is Alabama’s contracted gas supplier too. So it remains to be seen where these states are going to be obtaining this pure nitrogen gas from and that’s one of the questions that they’re going to have to answer.

Adam: So what is the current state of the legality of this? Is there anyone trying to challenge this or is that kind of a dead end legally?

Lauren Gill: So nitrogen has yet to go through the courts. This is going to be something that is likely going to happen when the states actually come up with a way to carry out the executions. Certainly there will be challenges and those challenges, you know, the courts are going to have to decide if these protocols meet the requirement for an execution method and will  that amount to cruel and unusual punishment.

Adam: So it seems like they can’t really do anything about it until it starts happening. So, the contract that the state of Alabama has, related to the creation of its nitrogen gas, has been sort of done in secret. Can you kind of talk about that and why that’s a problem and the extent to which people are kind of trying to keep this out of the papers?

Lauren Gill: Yeah, so in July, the attorney general of Alabama, he entered into a contract with the workplace safety consultant company related to the implementation of the nitrogen hypoxia execution method. The state is notoriously secretive when it comes to its execution methods and it has refused to show its contract to the public and it refused to give the contract to al.com. I was unable to get ahold of it. But this is problematic because obviously people, you know, want to see who is coming up with these execution methods and the more secrecy you have, you know, the more states are able to operate under the table. You know, we just don’t know what’s happening and this could lead to painful executions, botched executions. So it’s really important that the states are very transparent with everything that goes into this process. And it’s definitely not promising that Alabama off the bat isn’t willing to share its contract on, you know, the implementation of this method.

Adam: Right. Alright, well this was warm and fuzzy. Thank you so much for coming on and talking about this. I know this is sort of not lighthearted to chat about, but it’s extremely important. Again, it’s, I think the fact that we even have to have this conversation is extremely f’ed up, as the kids say. So thank you so much for coming on and we definitely look forward to further reporting on this because I know that there’s not a ton out there about it, so we really appreciate your work on it.

Lauren Gill: Thanks Adam.

Adam: Thank you to our guest Lauren Gill. This is The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always, you can rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.