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February 17, 2023

Could Alabama have an execution using nitrogen gas in 2023?

The question in the title of this post is prompted by this new AP piece headlined "Alabama 'close' to finishing nitrogen execution protocol."  Here are the basics:

The head of Alabama's prison system said Wednesday that a protocol for using nitrogen gas to carry out executions should be finished this year. "We're close. We're close," Alabama Commissioner John Hamm said of the new execution method that the state has been working to develop for several years.

He said the protocol "should be" finished by the end of the year. Hamm made the comment in response to a question from The Associated Press about the status of the new execution method. Once the protocol is finished, there would be litigation over the untested execution method before the state attempts to use it.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. Alabama, Oklahoma and Mississippi have authorized the use of nitrogen hypoxia, but it has never been used to carry out a death sentence.

Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method. Supporters said the state needed a new method as lethal injection drugs became difficult to obtain. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge in 2021 that it had completed a "system" to use nitrogen gas but did not describe it.

Although lethal injection remains the primary method for carrying out death sentences, the legislation gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. Hamm also said a review of the state's execution procedures should be completed, "probably within the next month."

As the article highlights, inevitable litigation over a novel execution method likely means the sensible answer to the question in the title of this post is "Quite probably no." But, given the long-standing debates over execution methods, it is still interesting to see Alabama claim it is getting closer to pioneering a new method.

February 17, 2023 at 10:49 AM | Permalink



Is there any reason you know of why general anesthesia is not used? Put them under and OD them. When I had surgery, the doctor told me he was going to start administering it and I was out in a snap.

Posted by: TarlsQtr | Feb 18, 2023 12:30:58 PM


That's something I've certainly never understood. The trick with most surgical anesthetics isn't putting the patient out, it's keeping them alive through the procedure.

I suspect it's mostly a matter of the political pull of medical associations, that they don't want their craft even tangentially tarred with deliberate execution. Plus, of course, the dispensing requirements for such agents currently requires a licensed MD's involvement. Given federal law on the subject I'm not even certain a state would be able to change their own law to evade that requirement.

Posted by: Soronel Haetir | Feb 18, 2023 4:12:13 PM

Tarls, I think Soronel has this right. I also sense there are not-unreasonable concerns about possible public reactions/problems if general anesthesia were to be used in executions. Might some (even many) folks due for routine surgery express concerns to their doctors and nurses about getting the same protocol as the killers who were executed a few days earlier? The medical supply companies who balked about their drugs being used in executions expressed concern that it would hurt their bottom line if their drugs were associated with deaths.

Posted by: Doug B | Feb 19, 2023 10:41:10 AM

The barbituate drug pentobarbital is widely used in veterinary practice for both anesthesia and euthanasia. Pentobarbital is also used as a human assisted suicide drug, because of the rapid onset of a coma (without any paid), leading to a peaceful, serene death. Pentobarbital has also been used (either alone or in combination with other drugs) as an execution drug. Of course, the manufacturers have objected to such use, the general public is mostly unaware that pentobarbital is also used as an anesthesia drug for routine surgeries. The bottom line is that the death penalty is on its way out in America. Most First World countries did away with the death penalty decades ago, leaving the United States and Japan as the only two remaining First World countries to have a death penalty. In Japan, the method of execution is death by hanging. Appeals and habeas corpus in Japan last only about 2 to 3 years, far shorter than the 20 year such proceedings may take in state and Federal Court in the U.S. After court proceedings are exhausted in the U.S., the condemned man usually has long advance warning of the date for his execution. Japan is far different, however. After appeals and all court proceedings are exhausted in Japan, the condemned has no advance notice of the date the execution will be carried out. It may come in a few months or a few years. This waiting creates an intense ongoing sense of anxiety in the condemned man, since he must live from day to day and month to month, without knowing what day the prison officials will show up after breakfast, take him to a prison courtyard, and hang him. Then a press release is issued, stating that the death sentence was carried out by hanging on that day. The dead inmate's family is contacted to see if they want to claim the body and bury it.

Posted by: Jim Gormley | Feb 19, 2023 9:19:06 PM

Jim Gormley --

"The bottom line is that the death penalty is on its way out in America."

That would have been true if you said it 60 years ago in the early Sixties. It isn't true now. A clear majority of the public supports the death penalty; the decline in its support has come to an end (it actually came to an end at least five years ago -- https://news.gallup.com/poll/404975/steady-americans-support-death-penalty-murderers.aspx) -- and we have the most pro-death penalty Supreme Court since the 1940's. And most important, the murder rate has increased markedly over the last ten years or so. The murder rate is a leading indicator of support for the DP (not surprisingly).

Plus a question: Do you believe it is just or unjust to execute Dzohkahr Tsarnaev, the Boston Marathon killer who blew apart an eight year-old boy, and whose guilt is acknowledged by every sane person who knows about that episode. Just or unjust?

Posted by: Bill Otis | Feb 20, 2023 1:45:25 PM

Jim Gormley,

Meanwhile, Florida may allow for executions for child rape. ( https://www.foxnews.com/politics/desantis-proposes-making-child-rapists-eligible-execution-allowing-death-penalty-unanimous-jury ) That sounds like setting up a challenge to Kennedy v. Louisiana. How do you think the SC will rule if such a challenge does materialize in a few years?

Posted by: htjyang | Feb 20, 2023 7:05:17 PM

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