By Chip Brownlee
Alabama Political Reporter
A bill passed Thursday in the Alabama Senate would mark a new evolution in the history of the death penalty in Alabama.
The state may soon add a third, untested option for death-row inmates deciding how they want their lives taken from them: a gas mask or gas chamber filled with pure nitrogen gas.
Lethal injection has been the method of execution used in the state of Alabama since 2002, but the state’s electric chair, known as Yellow Mama, is still waiting around in the attic in case an inmate were to decide they would prefer death by electrocution.
Now death by nitrogen hypoxia may soon be an option available to death-row inmates.
The Senate bill sponsored by Republican Sen. Trip Pittman would give the condemned the option to choose nitrogen hypoxia as their method of execution. The bill passed by a vote of 29-0.
“There’s a debate about the death penalty and whether that should be a punishment for certain crimes, but that is a separate debate,” Pittman said. “This is about the method, and what is the most humane and what can allow that sentence to be carried out.”
Pittman likened the method to how pilots and passengers on commercial airlines can pass out and die if their plane loses pressurization.
There was little debate on the bill. Though several senators expressed their support, no senator expressed opposition to the method. Sen. Jimmy Holley, R-Elba, did initially question some wording of the bill but ended up voting for it.
The legislation must be approved in the House and signed by the governor before becoming law.
Though lethal injection would remain the default option, Alabama would be the first state in the country to offer nitrogen hypoxia as a readily available choice for death-row inmates. Two other states recently added nitrogen hypoxia to the books as a legally allowable execution option — but only as a back-up if lethal injection is ruled unconstitutional.
If passed, the bill’s sponsor indicated some testing would need to be done before it is implemented.
“This is a choice, this is an option, but I think it’s more humane,” Pittman said. “Studies that have been done have indicated it is a very humane way to carry out the serious sentence of death, which I believe is a deterrent to people committing crimes.”
Lethal injection was once the new method of execution believed to be a humane advance, but it has in recent years been questioned by court challenges and public debate after several botched executions left inmates in apparent pain or discomfort as they died.
In 2016, Ronald Bert Smith Jr., who had been convicted of the 1994 murder of a convenience store clerk, coughed, gagged and heaved for 13 minutes after staff administered the three-drug cocktail used in executions. He was eventually pronounced dead 34 minutes later, according to an Associated Press Report.
This new method of execution, which has never been used in the United States before, replaces the oxygen in a prisoner’s available air supply with nitrogen, resulting in death within minutes.
If lethal injection drugs became “unavailable” due to a shortage or were ruled unconstitutional, nitrogen hypoxia would become the preferred method of execution under the new law.
Death-row facilities across the country have increasingly had difficulty finding the drugs needed to perform an execution as drug manufacturers began objecting to the use of their products in executions.
Though the law doesn’t specify how, the death-row inmate could be placed in either a sealed chamber or wear a gas mask. As the oxygen in the air is depleted and replaced with a nitrogen, the result is unconsciousness, coma and then death.
Nitrogen hypoxia has increasingly been discussed as an alternative method of execution as the availability and constitutionality of lethal injection drugs — specifically the first sedative in the cocktail, Midazolam — has come into question. Two other states, Mississippi and Oklahoma, recently made death by nitrogen a legal backup to lethal injection, though those states have not used it and inmates don’t have the choice to select it.
Alabama would be the first to offer it as a choice. Within a given time period, inmates could inform the Department of Corrections in writing that they would rather die by nitrogen hypoxia.
Proponents of nitrogen hypoxia and some researchers suggest a lack of oxygen is not what causes painful asphyxiation and nitrogen hypoxia would be painless because the person would still be able to breathe regularly until they passed out. The natural composition of air is about 78 percent nitrogen already.
The method has been used for veterinary euthanasia, but the American Veterinary Medical Association has recommended sedatives be administered to larger animals as a way of preventing any discomfort.
However, the method of execution the Senate approved Tuesday has never been tested on humans, and it’s never been used in capital punishment throughout the rest of the world, either.
Pittman said there have been examples of accidental deaths caused by humans being in a nitrogen-rich environment without realizing it. Other have used nitrogen to end their own lives, he said.
“It’s something that would need to be looked at,” Pittman said. The South Alabama senator said he had spoken with Corrections Commissioner Jeff Dunn, who said there would be “tests” before an execution was conducted by nitrogen hypoxia.
The move to add this execution option comes as a planned execution at Holman Prison in Atmore stalled Thursday night when Corrections officials said they did not have enough time to prepare for the execution. The U.S. Supreme Court earlier in the night briefly issued a stay while considering appeals but decided to allow it to proceed. Florida successfully carried out an execution Thursday, but a third in Texas was scrapped when Gov. Greg Abbott granted clemency.
Pittman’s bill must first appear in the House Judiciary Committee.