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August 23, 2023

Ohio prosecutors talking up nitrogen gas executions as a way to reboot state's dormant machinery of death

I flagged in this post a few days ago the dormant state of the death penalty in Ohio.  There has not been an execution in the Buckeye State in over five years even though the state has 122 condemned murderers currently on death row, and 31 of these murderers have exhausted all standard appeals.  The primary reason for this de facto execution moratorium has been the state's ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein.  That history has prompted Governor Mike DeWine to keep pushing back and pushing back execution dates for death row inmates while suggesting to the Ohio General Assembly that they need to address improving execution methods head on.

This new local article, headlined "Prosecutors want to resume executions using nitrogen hypoxia," reports that Ohio prosecutors have a new(?) idea for getting the state's machinery of death up and running again:

It's been five years since Ohio has executed its death penalty. Gov. Mike DeWine delayed executions due to limited access of the drug used for the lethal injection.  But Ohio prosecutors are looking to resume executions through alternative methods.  "We just want to find a pathway forward for the victims of these crimes," said Louis Tobin, the executive director of Ohio Prosecuting Attorneys Association.  

Tobin said Ohio needs to continue its using the death penalty to provide proper justice.  He said if there is a shortage of the drug needed for the lethal injection, Ohio can use nitrogen hypoxia.  "Filings by the defense bar and federal death penalty pleadings and in (the) Supreme Court of Ohio pleadings have acknowledged that it would be a painless method of execution," Tobin said.   The process of nitrogen hypoxia works by removing oxygen and letting a person die by inhaling nitrogen gas....

"Somebody who murders one young child is already facing that possibility without a death penalty," Tobin said, "and without the additional accountability that it provides, you're allowing them to kill the second and third child for free. They're free kills. So the death penalty is what justice demands sometimes. Either we're going to be a state that prioritizes public safety and prioritizes the victims of crime or we're not." 

In response to the Ohio Prosecuting Attorneys Association proposal, the governor’s office said only the Ohio General Assembly can change the methods for applying the death penalty.

As long-time readers know, there has long been discussion of execution by nitrogen gas as an alternative to lethal injections.  This discussion really picked up over the last decade as more and more states struggled with their lethal injection protocols.  And  in 2018, Alabama enacted a statute that formally authorized execution by nitrogen, and at least a few other states have execution protocol laws that would allow using this novel execution method.  But, as of now, no modern execution in the US has been completed using nitrogen gas and any efforts to switch execution methods in Ohio would surely engender significant state and federal litigation.

For a variety of reasons, I expect that Ohio's death penalty will remain dormant for the rest of Governor DeWine's time in office.  But, in a couple of years, a number of folks with a track record of support for the death penalty will likely start running to be Ohio's next Governor and it will be very interesting to see if the state's dormant death penalty gets any more attention.  In the meantime, folks can read up on nitrogen gas as an execution method via a small sample of prior posts on the topic: 

August 23, 2023 at 09:55 AM | Permalink


"The primary reason for this de facto execution moratorium has been the state's ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein."

Oh give it a rest. Judge Frost was an imperious judge that gummed up the works with his idiotic Equal Protection arguments.

Posted by: federalist | Aug 23, 2023 9:59:43 AM

Don’t we see enough one-sided drivel and hyperbole in the articles without the blog owner adding “machinery of death?”

Posted by: TarlsQtr | Aug 23, 2023 1:10:34 PM

For those who may get triggered by my various word choices, other words choices are always just a click away....

Posted by: Doug B | Aug 23, 2023 1:39:13 PM

Kent Scheidegger suggested nitrogen gas years ago.

Posted by: Bill Otis | Aug 23, 2023 1:53:48 PM

Yeah, Doug, but people seem to be interested in what Tarls/Bill and I have to say.

Posted by: federalist | Aug 23, 2023 2:17:05 PM


Here's an example of me owning the lib commenters. Notice how they skulked away. Ha ha ha ha.

Posted by: federalist | Aug 23, 2023 2:28:50 PM

Wow, homeless man shouts 10 years ago and still claims it is a feat that nobody bothers to engage...

Posted by: Doug B | Aug 23, 2023 2:43:47 PM

Ha ha doug--but they did engage, and they got their butts whipped.

Posted by: federalist | Aug 23, 2023 2:48:58 PM

Yep, you will always be a legend in your own mind, federalist.

Posted by: Doug B | Aug 23, 2023 2:52:00 PM

I smoked your buddy Bibas . . . . and no one can come away from that thread and say that I didn't whip 'em. Care to restart the debate about the non-existent Congressional bar regarding plea waivers?

Posted by: federalist | Aug 23, 2023 2:59:50 PM


I assumed an academic on campus would know best what the word “triggered means. Apparently not.

I critiqued your use of the phrase because it is not really fitting for a blog presumably set up for open and honest discussion. I get that you cannot do anything (or don’t want to) when commenters and the articles which make it on the blog use such loaded and one-sided rhetoric.

You don’t have to do it yourself.

Posted by: TarlsQtr | Aug 23, 2023 4:19:39 PM

federalist: if it is important to you, feel free to provide testimonials from others about your claimed victories in debates. Or you might just use your real name if you are so proud of your work here. Of course, you moral paragon, Donald Trump, appointed Judge Bibas to the Third Circuit. Did you submit any written testimony during his confirmation hearing about your low opinion of Prez Trump's choice? The evidence in the record, federalist, is that you are a legend in your mind and nowhere else.

Master Tarls, "machinery of death" is a famous phrase used by Justice Harry Blackmun in his famous dissent in Callins v. Collins, 510 U.S. 1141 (1994). Here is a little context in which the phrase appears:

"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor."

I have used this phrase dozen of times in posts on this blog, most often when discussing how states have endeavored -- indeed, struggled -- to get their execution protocols (their actual death machines) operational. I am not sure why my use this time has you upset, but you do seem "triggered" to comment about word selection a lot more than others. (I use that term to mean, via Urban Dictionary, "when someone gets offended or gets their feelings hurt." Are you triggered by my use of that term, too?)

Can you explain if you see any inaccuracy or misuse of words, Master Tarls, in the phrase "machinery of death" or in my effort to encourage knowledgeable readers to think about Justice Blackmun's dissent and his use of that phrase in a related context? What is not "fitting" about using the phrase "machinery of death" to discuss Ohio's struggles to use the effective technological means to carry out death sentences?

Posted by: Doug B | Aug 23, 2023 5:03:48 PM


Not all criticism is due to being “triggered.” We could go on like that forever. Your reaction to my being critical could be seen as you being “triggered,” as defined by you.

As far as Blackmun, he was making a pointed and clear statement against the DP. One could say he was engaging in “one-sided rhetoric.” Do you agree with his assessment? If not, then why would you quote it?

Posted by: TarlsQtr | Aug 23, 2023 5:27:42 PM

Doug, even you have to admit that federal courts (here's looking at you Judge Frost) have excessively meddled in execution protocols, and you've lumped that all in with calling a state's procedures a mess.

I don't have a low opinion of Judge Bibas--I just whipped his butt in a debate in here.

Posted by: federalist | Aug 23, 2023 5:31:22 PM

Master Tarls: Blackmun's point is that for years and years he tried to help make the rules of the DP satisfactory, but he concluded that after all this tinkering the game was not worth the candle. That is precisely a sentiment that, as I see it, should be considered as Ohio prosecutors start talking about wasting millions of dollars to possibly change the machinery that might be used to try to kill condemned murderers in Ohio. And that's especially true because Ohio has TWICE botched lethal injection executions and had difficulties with others (when few other states have had such problems), a point federalist seems to forget.

Of course, when you write your own blog --- or when you comment on this one --- you can choose the words you use. You can also choose to hide your identity. You can also choose to link to off-topic articles or claim you whipped the butt of a Trump-appointed judge. But in a world in which, as I see it, we already have waaaaaay to many word police and we waste lots of time on word choices rather than substantive issues, I find it notable that a supposed conservative seems so very eager to complain repeatedly about my various word choices.

As for "one-sided rhetoric," I see all rhetoric and all expression as "sided." But I do not spend time worrying too much about the word choices I dislike or have concerns about "sidedness" in the NYT or the WSJ or on Bill's substack or in comments to this blog. If I want to engage the substantive point, and the word choices seems relevant, I may probe and inquire. But you seem to have a strong view as to proper pronouns and proper words to be used. Fine, you can use those. I will generally do the same based on what I consider proper (which is sure to be different from your view and everyone else); sometimes I might misuse words or be misunderstood. But writers should get to make their choices, and that's part of the fun of writing. If others want to spend time complaining about the words being used, you not only take the fun out of writing, you also end up wasting time that could be used a lot more productively on other activities. At least that's how I see it.

Posted by: Doug B | Aug 23, 2023 6:08:05 PM

Your word choice of ugly elides a lot of ugliness by Judge Frost.

As for Bibas--go read the debate--he lost. I think he'd even admit it.


Interesting use of discretion.

Posted by: federalist | Aug 24, 2023 9:33:48 AM

federalist: Ohio has has two truly botched executions (ie, executions not completed when actively trying) as well as others alleged to have gone wrong in other ways. That is an "ugly" history. If you think the litigation has also been "ugly," that's fine for you to want to select that adjective for that process. As I see it, the litigation has unfolded in the ways that it has in part because of those botched executions and multiple federal judges feeling as through Ohio officials were not straight about what was going on (and very effective defense attorneys highlighting that reality).

Posted by: Doug B | Aug 24, 2023 10:15:20 AM

Doug, Frost got po'd because a doctor was present at the execution, and that wasn't in the protocol. That alone, in my view, should disqualify the entire federal judiciary from meddling in state executions.

Posted by: federalist | Aug 25, 2023 3:11:58 PM


Posted by: Doug B | Aug 25, 2023 3:19:06 PM

Awww isn't that cute?

Posted by: federalist | Aug 25, 2023 4:55:00 PM

Since Blackmun used his grandstanding phrase -- in order to paint a minuscule number of executions rather than thousands of murders as the real problem -- the Supreme Court has repeatedly considered the DP and has explicitly held that it is constitutional. Indeed, in the many years after Blackmun's grandstanding, the Court is now more pro-death penalty than at any time in my career.

Academia simply has no interest in honestly looking at any of these gruesome murders (no matter how much it occasionally, and lamely, might pretend otherwise). Instead it devotes itself to smearing anyone who agrees with the majority of the American people in supporting capital punishment. And if you happen to take the conservative side of anything at all, you risk being shouted down like Judge Duncan was -- all by Leftist "students" claiming to protect academic freedom.

They're actually dime-store Nazis, so it's no big surprise that, in capital litigation, they routinely take the side of the killer against the jury's judgment.

Academia is so unbalanced in favor of killers and against accountability that it should be a scandal. But, since they own the MSM, it isn't.

Doug -- A Pennsylvania jury (not Louisiana or Mississippi) gave a death sentence to the synagogue mass killer. You have often spoken out in favor of giving the jury more power in sentencing. Do you support the jury's sentencing decision in the Pennsylvania case?

Posted by: Bill Otis | Aug 26, 2023 10:18:26 AM

I do support the jury's sentencing decision in the Tree of Life Synagogue mass murder case, Bill. Do you support the jury's sentencing decision in the Parkland mass murder case? More broadly, would you support a proposal to have jury sentencing in all LWOP cases, which some call a slower death penalty?

Your eagerness to talk about Judge Duncan and the MSM shows these issues raise a lot of feelings for you, too. So, to make sure you know I hear you, BFM.

Posted by: Doug B | Aug 26, 2023 2:19:04 PM

Doug --

What does BFM mean?

P.S. Glad you support the DP for the synagogue shooter. I know you're not an abolitionist, but some of your breast-beating commenters occasionally need reminding. I do not support the failure to give the DP in the Parkland shooting case. I also didn't support the acquittals for OJ and Casey Anthony.

I would certainly think about supporting jury sentencing in all capital cases, PROVIDED that that was the end of the game. That is, if the jury rejects the DP, too bad, the killer gets LWOP and that's the end of it. But the other side of that coin is that if the jury gives the killer the DP, that is also the end of it. These appeals out into infinity are a perversion of justice.

Posted by: Bill Otis | Aug 26, 2023 6:30:12 PM

Doug --

P.S. My lonely reference to Judge Duncan (not exactly an obsession) is because I know him slightly and because, I'm mortified to admit, the disgraceful shouting down episode was at my alma mater, Stanford Law, and not a single student got punished.

Posted by: Bill Otis | Aug 26, 2023 6:33:49 PM

Bill: BFM means "Bill's Feelings Matter." Federalist has an annoying tendency to want to claim that, if I or others fail to respond or engage with one of his off-topic fulminations (like the Flynn case or Sleepy Joe's comments in Hawaii), he has made some profound winning point. I have recent decided that, for the sake of efficiency during a busy fall, I will sometimes just respond with FFM ("federalist feelings matter") so he knows I am aware of his feelings even if not having time or interest in providing a substantive response. Your (off-topic) comments about Judge Duncan struck me in the "strong feelings" category, leading me to coin BFM.

On topic, I do not think you answered my query about jury sentencing in all LWOP cases.
Would you support jury sentencing involvement "PROVIDED that that was the end of the game." That is, if the jury rejects the LWOP, too bad, the killer (or drug dealer or sex offender or fraudster) gets life WITH parole and that's the end of it. But the other side of that coin is that if the jury gives the defendant LWOP, that is also the end of it.

In the federal system, USSC data suggest that there may be 100 or more LWOP sentences for every death sentence, and I share your view that we waste far too much time and resources on DP appeals relative to resources spent reviewing (far more common) extreme prison sentences like LWOP (which, in the federal system, is more often imposed on non-killers).

Posted by: Doug B | Aug 27, 2023 11:05:28 AM

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