As Alabama eyes more nitrogen executions, opponents urge companies to cut off plentiful gas supply

MONTGOMERY, Ala. — Alabama in late January became the first state to use nitrogen gas in an execution, finding a new way to carry out a death sentence after pharmaceutical companies refused to let their products be used in lethal injections.

Kenneth Eugene Smith, 58, was put to death on January 25 for the 1988 murder of 45-year-old Elizabeth Sennett. State prison officials placed a mask over his face and replaced the air he breathed with nitrogen gas, depriving him of oxygen got more.

Alabama has said it plans to continue using this new method. Other states are considering following suit as nitrogen gas, the key material in nitrogen implementation, is readily available for purchase. But at least one company has said it will not supply nitrogen for executions, and anti-death penalty groups hope others will do the same.

Despite the availability of nitrogen gas, legal challenges could ultimately pose a major hurdle for prison officials trying to obtain it, at least for now.

Pharmaceutical companies’ refusal to allow their products to be used in lethal injections, and ongoing lawsuits over that execution method, have made it difficult for some states to carry out death sentences. That led them to explore alternative ways to carry out executions.

Three states – Oklahoma, Mississippi and Alabama – have approved nitrogen gas as an execution method. In Oklahoma, nitrogen was allowed as a backup method in case lethal injection is not available due to court rulings or drug shortages. Alabama law gives inmates the option to choose nitrogen as their preferred method.

Just as the state has declined to name suppliers for lethal injection drugs, the Alabama Department of Corrections will not say where it obtained the nitrogen gas used to kill Smith. The state redacted information in federal court filings that identified the supplier. Court documents filed by the state showed that the gas used was certified as 99.999% pure nitrogen.

Nitrogen gas can be easily purchased without a license from manufacturers, industrial suppliers or even online retailers. Nitrogen gas is used for various purposes in manufacturing, welding, inflating tires, and calibrating and maintaining equipment. The abundant supply is likely one reason some states have shown interest in the new method.

The air around us is 78% nitrogen and generators can be purchased that produce very pure nitrogen by isolating it from other gases in the air. That could allow prison officials to circumvent suppliers’ reluctance to supply nitrogen gas for executions.

At least one major manufacturer, AirGas, acquired by France’s Air Liquide, has said it will not supply gas for executions. The position is similar to that of pharmaceutical companies refusing to supply lethal injection drugs.

“Airgas has publicly expressed the position since 2019 that supplying nitrogen for the purpose of human execution is inconsistent with our corporate values ​​and that position has not changed. Airgas has not and will not supply nitrogen or other inert gases to induce hypoxia for the purpose of human executions,” a company spokeswoman wrote in an email.

Bianca Tylek, the founder of Worth Rises, a criminal justice advocacy group, said she hopes other manufacturers will follow the lead of Airgas and drug makers.

She acknowledged that it is more difficult to cut off the supply of easily available, high-purity nitrogen gas, but urged companies to ban their products from being used in executions.

Even as deliveries of lethal injection drugs were cut by manufacturers, states found solutions, such as turning to compounding pharmacies.

Activists and lawyers for people on death row will continue to fight the use of nitrogen gas for executions, and legal challenges could slow things down, at least for a while.

Critics are already using witness accounts of Smith convulsing on the stretcher for minutes to show that nitrogen gas does not provide a humane and quick death, as the state promised.

The day after Smith’s death, Alabama Attorney General Steve Marshall declared the execution a success and said the state will pursue more nitrogen executions in the future. He offered assistance to other states that wanted to follow Alabama’s path.

But nitrogen hypoxia will not replace lethal injection in Alabama. In the future, the state’s method of execution will be based on “prisoner choice,” Marshall said.

Alabama gave prisoners a short period to choose nitrogen as their preferred method of execution. More than 40 people on the state’s death row have chosen nitrogen as their preferred method. However, there will almost certainly be lawsuits citing how Smith’s execution unfolded the next time the state tries to set an execution date using nitrogen gas.

An Alabama death row inmate has filed a lawsuit challenging the constitutionality of nitrogen gas executions. The lawsuit, which cited witness testimony showing Smith shaking and writhing on the gurney, argued that Smith’s execution was “a human experiment that officials botched miserably” and “should not be repeated.” A federal judge has ordered a march. hearing on a death row inmate’s request to see the unredacted nitrogen execution protocol, gas mask and other information disclosed to Smith’s attorneys.