On Friday the Governor of Oklahoma signed into law a bill that would establish nitrogen-induced hypoxia as a means of executing prisoners, should circumstances prevent lethal injection from being used. The bill does not get into specifics, it simply modifies the existing law on the order of preference for methods of execution (Oklahoma now has four). The law would take effect November 1, 2015. Oklahoma does not currently have any executions scheduled, and the executions of three men are currently stayed pending a Supreme Court case.
While gas chambers have been used for executions in the United States (inmates in three states still have the option of death by gas), the active gas used to suffocate the condemned was never nitrogen. The general principle is the same, a gas is pumped into a sealed chamber, and the condemned dies after breathing it. Hydrogen cyanide was the most common gas used in the United States for executions, and it is considered a chemical warfare agent. Using nitrogen for execution could be very different as it is not toxic, and could cause much less pain and suffering for the condemned. It would likely be easier to use than hydrogen cyanide.
But it is an untested method. Oklahoma has no experience with a gas chamber, and with its challenges in administering lethal injections, I can understand why some would doubt the state’s ability to effectively innovate in executions. However, should the Supreme Court rule against the state’s lethal injection protocols later this year, Oklahoma may well set an example for other states seeking ways around the roadblocks to lethal injection.
Sidebar – While the Supreme Court case on Oklahoma’s methods may make this moot, the federal death penalty may force a more definitive legal stance on lethal injection. The federal government’s preferred method of execution defers to the state in which the crime took place. Should there be no death penalty in that state, the judge must choose a state with a death penalty to carry out the execution. While this typically means lethal injection, it is plausible that the recent turmoil in the states may affect how the federal government conducts its executions. However, no federal execution has been carried out since 2003, and none are scheduled at the time of this writing.