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Thursday, June 18, 2015

Oklahoma’s Latest Invention: Execution by Nitrogen Gas

In 1977, Oklahoma started a national trend when it adopted lethal injection as a new method of execution.  This year, maybe it will do the same in adopting death by “nitrogen hypoxia” as a statutorily authorized alternative to lethal injection.

Oklahoma Governor Mary Fallon said she signed the bill to give the state “another death penalty option,” and if there’s one thing the state of Oklahoma likes about its death penalty (besides secrecy), it’s options.  Whereas most death penalty states have one lethal injection protocol, maybe two, Oklahoma has five.  And whereas most states have one method of execution, maybe two, Oklahoma has four.  If for some reason lethal injection and nitrogen gas don’t work out, the state has the electric chair and firing squad also waiting in the wings.  Little wonder Oklahoma has in the last several years edged out Virginia as the second most executing state since the revival of the death penalty in 1976—it’s nothing if not committed to the death penalty.  

Oklahoma’s statute doesn’t say exactly how death by nitrogen hypoxia will be carried out, and it’s brand new so we’re all just guessing here, but the assumption appears to be that some sort of mask would be affixed to the condemned inmate’s head, which would then be used to pump in pure nitrogen.  Nitrogen is already in the air we breathe so it’s not inherently toxic; it’s the lack of oxygen that does a person in, and that’s apparently painless.  “You just sit there and a few minutes later, you’re dead,” the bill’s sponsor said.  Rather than imposing death, nitrogen hypoxia “withholds life.”  Sounds kinda brilliant when you put it that way.

But there’s always a hitch.  Execution by nitrogen hypoxia is a one-off of Jack Kevorkian’s “exit bags” and similar techniques advocated by right-to-die advocacy groups.  The problem is that its only use has been on people who wanted to die, so they weren’t trying to break the seal, or refusing to breathe, or doing whatever else one might do to gum up the works.  “It requires the total cooperation of the person who is dying,” one euthanasia spokesman said of the process. 

The other difference—and maybe this doesn’t matter—is that those groups use helium rather than nitrogen to get the job done, and that was off the table from the start.  Indeed, even with nitrogen as the designated gas, some legislators worried that death by hypoxia would be accompanied by a brief moment of euphoria rather than pain.

In the end, we really don’t know how all this will work out, which I suppose is the case with most any innovation in execution methods.  “I assume somebody must have done some research,” one state senator said—and that’s true, to an extent.

What data we have on forced inhalation of pure nitrogen comes from veterinary science, and in that experiment, the cats and dogs howled and convulsed.  The American Veterinary Medical Association has taken the position that nitrogen asphyxiation is not appropriate for animal euthanasia, but that doesn’t seem to matter much.  The AVMA has said the same thing about using paralytics during animal euthanasia by lethal injection, and we’ve done that to humans for decades.

All that brings me back to what the Oklahoma legislator who wrote the bill said about nitrogen hypoxia—“It’s foolproof.”  I say maybe it will work, maybe it won’t.  But if we think know the answer to that on the front side, we’re fooling ourselves.

Posted by Corinna Lain on June 18, 2015 at 12:22 PM in Criminal Law, Law and Politics | Permalink



There have been nitrogen gas experiments with human subjects. It was determined that unconsciousness occurs within 16-17 seconds and that, for safety, 16 seconds should be the limit with human subject experiments.

For execution, there is little doubt that some would hold their breath, which will result in minor delay, followed by deep inhalation

The animals experiments that you referenced used chambers and not direct application masks or tubes. Animals became unconscious within 1-2 minutes and death came within 5 minutes.

Posted by: Dudley Sharp | Jun 4, 2018 9:40:37 AM

I read recently this by Timothy Kaufman-Osborn & it seems right: "death penalty proponents and opponents alike, as well as courts, are haunted by the ideal of a death sentence whose infliction is so imperceptible that it effectively elides the act of killing....It can never be perfectly realized, that is, as long as those condemned to die remain beings whose recalcitrant bodies resist extermination and so require violence, no matter how well sterilized or concealed, in order to kill them."

We want death, but not the violence that goes with it & that seems to be the crux of the problem.

Posted by: Corinna | Jun 22, 2015 3:51:27 PM

I agree with the last paragraph.

To the extent it is akin to euthanasia, this will concern some like lethal injection as akin to a medical procedure concerns some. And, even if it is just a matter of confusion, any use of "gas" will have bad implications to some. Guess it's a matter of choice of imperfect options.

On that front, maybe just get out of the business. I know. I know.

Posted by: Joe | Jun 21, 2015 3:52:26 PM

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