By Alessandra Suuberg, Decency LLC
At the end of January 2024, Alabama became the first state in the United States to carry out an execution by nitrogen hypoxia.
This month, the Death Penalty Information Center (DPIC) reported that a bill in Ohio would approve use of nitrogen gas for executions in that state, as well.
DPIC previously reported that three U.S. states have approved the use of nitrogen gas in executions: Mississippi and Oklahoma, in addition to Alabama.
According to Scientific American, Oklahoma was the first state to propose using nitrogen gas for executions, in 2014, “after . . . multiple botched execution attempts using lethal injection.”
Oklahoma then introduced nitrogen hypoxia as an alternative to lethal injection in 2015, and Alabama approved the method, as well, in 2018. More recently, in January 2024, Nebraska proposed adding nitrogen hypoxia as a method of execution (see: Legislative Bill 970).
The following is a summary of legislative changes sought in Ohio, providing context with respect to challenges faced by proponents and opponents of capital punishment.
H.B. 392 is described as a bill “[t]o . . . add nitrogen hypoxia as a method of execution and to prohibit the disclosure of execution identifying information.”
A New Alternative to Lethal Injection
The change: H.B. 392 allows an individual to choose nitrogen hypoxia as their method of execution. If the individual does not make a timely choice of nitrogen hypoxia, lethal injection is used. If lethal injection is not available, nitrogen hypoxia is used. If either method is determined to be unconstitutional, then another method, not determined to be unconstitutional, is used.
The context: Lethal injection is the most common method of execution in the United States. However, states have run into difficulty obtaining drugs for lethal injection due to, e.g., opposition from pharmaceutical companies and European export controls.
Difficulty obtaining lethal injection drugs has reportedly caused a lengthy pause on executions in Ohio, with the state’s attorney general recently stating a need to “kickstart” the system.
In addition to adding nitrogen hypoxia as an option for capital punishment, Ohio’s H.B. 392 contemplates that alternatives could be necessary if this method is determined to be unconstitutional.
Protection of Execution Identifying Information
The change: H.B. 392 defines “execution identifying information,” which includes information about entities participating in an execution, as well as entities responsible for providing equipment and materials for the execution. The bill prohibits reckless disclosure of execution identifying information.
The context: State laws may protect various entities who participate in executions. Reasons for doing so can include a wish to avoid public pressure, harassment, or harm.
For example, physicians may be concerned about professional (e.g., disciplinary, licensing) consequences of participating in executions. This is because legally-permitted or required participation in executions can conflict with professional codes that prohibit it. Ohio’s law seeks to resolve this conflict by specifying that entities participating in executions will not face professional consequences.
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