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May 24, 2014

Is nitrogen gas the best modern execution alternative to lethal injection?

Liquid-nitrogen-250x250-250x250The question in the title of this post is prompted by this Slate commentary by Tom McNichol headlined "Death by Nitrogen; If lethal injection falls out of favor, death penalty states could turn to a new method: nitrogen gas." Here are excerpts:

The Supreme Court ruled in 2008 that Kentucky's three-drug protocol for carrying out lethal injections was constitutional, but there’s no question that the method looks grimly suspect in the wake of Clayton Lockett’s apparently painful, botched execution in Oklahoma last month. Not so long ago, though, this was the method that represented progress. Hanging. Firing squad. The guillotine. The electric chair. The gas chamber. Lethal injection. Every age seems to feature a new and improved method of capital punishment, billed as more efficient and humane. The spectacle of Lockett’s death, and the Supreme Court’s hesitation, shines a spotlight on the latest idea — death by nitrogen.

This new proposed method, known as nitrogen asphyxiation, seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen. Nitrogen gas has yet to be put to the test as a method of capital punishment — no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them. (It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.)

In late April, Louisiana Department of Corrections Secretary James LeBlanc suggested to a state legislative committee that Louisiana should look into using nitrogen gas as a new method of execution, since lethal injection has become so contentious. “It’s become almost impossible to execute someone,” LeBlanc complained to the Louisiana House Administration of Criminal Justice Committee.

“Nitrogen is the big thing,” LeBlanc told the committee. “It’s a painless way to go. But more time needs to be spent [studying] that.” The committee instructed LeBlanc to do some research on the subject and report back. In the meantime, Louisiana has delayed a pending execution. “I’m not taking anything off the table,” says state Rep. Joseph P. Lopinto III, chairman of the state’s Administration of Criminal Justice Committee. “If someone says nitrogen gas is the way to go, then we can debate that and do it if need be.”

As long as 32 states have capital punishment on the books, there should be a less reliably cruel method of execution than lethal injection.  “If we’re going to take a life, then we should do it in the most humane, civilized manner as is possible,” says Lawrence Gist II, an attorney and professor of business and law at Mount St. Mary's College. “Right now, nitrogen is the best of the available options.”  Gist, a death penalty opponent, runs a website dedicated to promoting nitrogen asphyxiation for state-sanctioned executions....

Nitrogen gas, unlike the lethal drugs that states have relied on, is widely available.  The gas is used extensively in industrial settings, from aerospace to oil and gas production “Lethal injection is just fine if you can get the pentobarbital,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a group that favors capital punishment. “But if that’s not available, an alternative like nitrogen gas would work.”

In contrast to lethal injection, no medical expertise would be needed to introduce nitrogen gas into a sealed chamber.  The gas chamber itself is technology that has been around since the 1920s. In fact, three states — Arizona, Missouri, and Wyoming — still authorize lethal gas as a method of execution (depending on the choice of the inmate, the date of the execution or sentence or the possibility that lethal injection is held unconstitutional).

The last gas chamber execution in the U.S. was in 1999 — the method fell out of favor because hydrogen cyanide is a poison causing suffering that lasts 10 minutes or longer. Lethal injection, of course, was supposed to be painless and better.  What if it’s not? That’s the question the Supreme Court now finally seems to be returning to.  The history of capital punishment suggests that as long as there’s a will to kill criminals, someone will come up with an improved way.  The new tool in the executioner’s bag may turn out to be nitrogen, a better way to carry out a gruesome task.

If nitrogen gas is really an easy, effective and painless means for killing a condemned inmate, I hope Louisiana and other states might move to this method of execution in the near future. In recent years, the only folks truly well served by lethal injection are those who enjoy last-minute appellate litigation and the prospect of a painful execution. Moreover, as I have often said before, if Congress would have the good sense to care about helping both the feds and states find a better way to carry forth capital justice, perhaps they could consider having a hearing to explore what reasonable modern alternatives to lethal injection might be worth seriously considering.

A few recent related and older posts:

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Comments

The thing about nitrogen or other inert gas asphyxiation is that you don't even actually need a sealed chamber. The traditional gas chamber is as much to protect everyone else as it is to expose the condemned to the poison. With neutral gasses on the other hand (especially nitrogen or argon which are biologically inert, unlike carbon monoxide which I've also seen bandied as an alternative) it wouldn't really matter if there were outward leakage, so all that would really be needed would be a breathing mask that securely covered the nose and mouth. That means that current execution facilities would not need to undergo extensive remodeling. And as the article mentions we have solid evidence of what is actually experienced during nitrogen asphyxiation as it is something that can be survived if oxygen is re-introduced. I also don't see the gas suppliers having nearly the ethical concerns that drug companies are displaying, especially as there are plenty of domestic producers of nitrogen and much of the ethical concern is coming from Europe.

Posted by: Soronel Haetir | May 24, 2014 6:20:49 PM

Look, if we want to be honest about this the best way to tell what works best and what does not work best is to look at the ways that people commit suicide. Drugs have always been a terrible way to die because the success rate is so low (around 3%). Guns and hanging are the most effective. Among the gases the two most popular ways are helium and carbon monoxide. The primary reason that these two gases are preferred is because they are easier to get a hold of than nitrogen. A lethal amount of helium can be purchased at any Wal-mart. The major reason that helium is not as popular as other means of suicide is because creating what--in essence--is a small home gas chamber is not inherently simple and that process intimidates some people, especially people who are of troubled mind enough to consider suicide.

There have already been extensive studies with helium in the right-to-die movement. Time to unconsciousness is between 45 and 120 seconds, time to irreversible brain damage 3-5 minutes, and time to total brain death 10-15 minutes. The real question that people need to confront is not whether it can be done but how will it change people's viewpoints when it becomes obvious what experts already know--we can kill someone simply, easily, painlessly, quickly, and cheaply. Does that cheapen life? Do we really want a drama-free experience when the state puts someone to death? Gas is easy--perhaps too easy.

Posted by: Daniel | May 24, 2014 6:51:45 PM

All pretty silly stuff. What is it doing on a serious law blog?

Posted by: peter | May 25, 2014 10:22:21 AM

Why is is "pretty silly stuff" to determine if an alternative means is easier for the condemned person when harm (at times labeled torture) is a major concern, one that overlaps those who support and oppose the death penalty? I'm against the death penalty myself, but I take seriously concerns about problems with the process, including extra care to carry it out the best we can. Many things leave a lot to be desired. Harm reduction matters still.

I appreciate this separate entry on a means flagged by a few comments as a best approach. There is a suggestion it is "too easy" for some. I think "gas" itself has a bad connotation. Still, I don't think making sure the execution itself isn't too easy is a major rationale for choice of options in the past. So, it does interest me why this option wasn't chosen.

Starting a new means of execution raises problems -- the 8A itself is wary about "unusual" punishments particuarly -- but other than it being "too easy," I'm not fully sure why this wasn't tried in the past. Why does "no country" use it? Seems a bit strange to me.

Posted by: Joe | May 25, 2014 10:59:23 AM

Joe.

You raise an excellent question and one I have asked myself. I have my own theory and I'll offer it up for your consideration. I think that gas has a negative connotation for two reasons. First, it remains in the collective conscious as being historically associated with an evil regime. People do not want to be associated with that, even tangentially. More recently, gas has become strongly associated with the right-to-die movement. Books like Final Exit, A Guide to a Safe and Humane Death, and even the Peace Pill Handbook have all pushed gas as a "humane" way to kill oneself. There are even detailed videos one can find on the internet about how to kill oneself using helium. So I think there has also been a reluctance to give the state's imprinteur to a method associated with suicide. If the state is killing people with gas then it makes it that much more alluring to suicidal people to kill themselves that way too.

Switching from drugs to gas is not going to occur in a cultural or historical vacuum. Gas is already out--it has been advocated as humane method to kill for almost 20 years. If the state comes along and start doing it too that is going to send a strong signal that euthanasia organizations such as Exit International were correct all along. So my theory is that states have-under pressure from right-to-life organizations--been reluctant to adopt gas because of the people it has been associated with. It would be a deep irony, almost to the point of surreality, if the anti-death penalty camp push against execution drugs drove states right into the arms of the euthanasia movement.

Posted by: Daniel | May 25, 2014 1:47:29 PM

If every murderer killed with gas we could abolish the DP because gas as a murder weapon would be an extenuating circumstance and so every murder would be more humane than heinous.

We could kill all those birds with one gas.

Posted by: George | May 25, 2014 4:39:04 PM

Almost all of us will die after suffering great pain, humiliation, and shocking loss of function over months if not years. Some of us will need illegal aliens to wipe our butts. Where did the right to a perfect death come from? Not from the Eighth Amendment.

First the death penalty is not a punishment, it is an expulsion, no matter what retributionists claim for it. Second, evolving standards of decency do not support torture, but they do not prohibit any death but a perfect one. That is not in any section of the constitution.

This argument is a false one. If a procedure result in death, it is constitutional. It should be carried out in secret to avoid offending the sensibilities of the journalism profession. Almost all of them are left wing even compared to average Democratic party members. There is no procedure that will fail to deeply offend, because we are getting rid of a source of government make work jobs, the criminal. And that is the greatest offense, not being disclosed in this debate.

Posted by: Supremacy Claus | May 25, 2014 7:39:37 PM

From the Veterinarian Amicus Brief to the Supreme Court:

IN SOLUTION AND INEXPENSIVE.
¢ONSISTENT WITH THE GOAL OF ACHIEVING DEATH IN
ANIMALS IN THE MOST HUMANE MANNER POSSIBLE, KENTUCKY
VETERINARY LAW MANDATES THAT HUMANE EUTHANASIA BE
ACCOMPLISHED BY THE USE OF A SINGLE DRUG: SODIUM
PENTOBARBITAL. 201 KY. aDMIN. rEGS. 16:090 § 5(1).6 tHIS
AVOIDS THE USE OF EITHER PANCURONIUM BROMIDE OR
POTASSIUM CHLORIDE. iT THUS MAKES IRRELEVANT THE FACT THAT
“(I)T IS UNDISPUTED THAT, WITHOUT PROPER ANESTHESIA, THE
ADMINISTRATION OF PANCURONIUM BROMIDE AND POTASSIUM
CHLORIDE, EITHER SEPARATELY OR IN COMBINATION, WOULD
RESULT IN A TERRIFYING, EXCRUCIATING DEATH.” HARBISON,
2007 fil 2821230, AT *11.
6. tHE KENTUCKY REGULATION ALLOWS ONLY TWO OPTIONS: SODIUM
PENTOBARBITAL, OR SODIUM PENTOBARBITAL WITH LIDOCAINE. lIDOCAINE
IS A COMMON LOCAL ANESTHETIC.

How to make Sodium Pentothal from the 1939 recipe. Go the Patent Office website, enter 2153729, make all you want in Prison Industries.

Posted by: Supremacy Claus | May 26, 2014 8:33:04 AM

I appreciate the comment Daniel & do think that factors in.

We did have gas chambers though in this country. Were they sort of grandfathered in, new tweaks on their usage including a different type of gas somehow illicit? Also, why only twenty years? Wasn't this type of gas used longer than that? The late presence suggests to me possible complications though perhaps current knowledge tempered them.

Book TV on CSPAN aired (see its website, including for video) Austin Sarat talking about his new book on botched executed & a question did flag the right to die movement. Ironically, she was concerned about usage of lethal injections or drugs in that respect.

Posted by: Joe | May 26, 2014 10:39:58 AM

http://onlyinamericablogging.blogspot.com/2011/09/how-to-kill-human-being.html

here is all you need to know, nitrogen IS the best way and for executions a mask a cylinder and about ten minutes is all it would take, the answer is just ignored in the official channels in the USA it seems

Posted by: John | Jul 25, 2014 12:25:33 AM

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