Arkansas Joins Ranks of States Authorizing Nitrogen Hypoxia Executions
Arkansas has become the fifth state in the United States to authorize the use of nitrogen hypoxia as a method of capital punishment. Republican Governor Sarah Huckabee Sanders recently signed legislation into law, codifying the controversial method. This decision comes at a time when the death penalty debate is reignited across the nation.
The adoption of nitrogen hypoxia in Arkansas occurred mere hours before Louisiana ended a 15-year hiatus on capital punishment with the planned nitrogen gas execution of Jessie Hoffman. The Louisiana execution represents only the fifth time this method has been used in the United States, following Alabama’s lead last January.
Proponents of the new law in Arkansas argue that nitrogen hypoxia is a necessary tool to deliver justice to the families of victims. Attorney General Tim Griffin stated, "As a state we have failed to keep our promises to the friends and family of victims to execute those sentenced to death under our laws. That ends now. Act 302 gives the state the tools needed to carry out these sentences and deliver justice."
The decision has met with strong condemnation from anti-death penalty advocates. The Rev. Jeff Hood, a vocal opponent of capital punishment, witnessed the first nitrogen gas execution in U.S. history. Hood criticized Governor Sanders’ decision, stating, "Governor Sanders has absolutely, positively no idea the moral hell she has just unleashed." Hood previously testified before the Arkansas House Judiciary Committee, describing the execution of Kenneth Eugene Smith as "by far the most horrific thing I have ever seen."
Nitrogen hypoxia involves depriving the condemned individual of oxygen by having them inhale nitrogen through a mask, ultimately leading to asphyxiation. In addition to Arkansas and the two states that have employed it, Mississippi and Oklahoma have also legalized the method. Legislatures in Ohio and Nebraska have reintroduced similar legislation this year, signaling a potential trend towards wider adoption.
Opponents of nitrogen hypoxia contend that it constitutes an exceedingly cruel method of execution. Concerns about the potential for suffering and pain have been raised. Last week, Chief District Judge Shelly Dick temporarily blocked Hoffman’s execution in Louisiana, citing concerns that it could cause him "pain and terror" and that he showed a "substantial likelihood" of proving that nitrogen gas executions violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
Judge Dick referenced accounts from Alabama executions. These accounts described suffering, including conscious terror for several minutes, shaking, gasping, and other evidence of distress. Witnesses reported observing inmates’ bodies "writhing" under restraints, "vigorous convulsing and shaking for four minutes," "heaving," "spitting," and a "conscious struggling for life."
Alabama Attorney General Steve Marshall has defended the method as "constitutional and effective." Louisiana Attorney General Liz Murrill has dismissed witness accounts from news media members as unreliable. The 5th U.S. Circuit Court of Appeals overturned the stay on Hoffman’s execution, and the Supreme Court declined to hear the case in a 5-4 decision.
The shift toward using nitrogen gas as a method of execution is partly driven by the increasing difficulty in obtaining the drugs required for lethal injections. Drug manufacturers have increasingly refused to supply medications for executions, citing ethical and reputational concerns.
In 2010, Hospira, the company that produced Pentothal, a sedative used in the three-drug lethal injection method, ceased production due to its inability to acquire necessary components within the United States. Attempts to restart production in Italy in 2011 failed after the company couldn’t guarantee that the drug would not be used for executions.
The inaccessibility of Pentothal was exacerbated by other drug manufacturers’ unwillingness to provide drugs for executions. Austin Sarat, a political science and law professor at Amherst College, stated in 2023, "The legitimacy of capital punishment has been tied up with the promise that it’s safe and humane."
In 2016, pharmaceutical giant Pfizer restricted the distribution of seven of its products to prevent their use in lethal injections. Baxter International followed suit in 2017, stating that it would not allow its products to be used in executions, including both its drugs and medical equipment.
Dale Baich, a former federal defense attorney who has represented death row prisoners, explained, "Once manufacturers and companies find out that their product is being used to kill people, rather than to heal people, they’re concerned, and they don’t want their brand identified with that process."
In January, President Donald Trump issued an executive order directing the U.S. Attorney General to assist states in securing lethal drugs.
Arkansas has not carried out an execution since 2017, when then-Governor Asa Hutchinson ordered eight executions to be carried out in four sets of double executions over an 11-day period. The state carried out four of those scheduled executions, two of which were reportedly botched due to expiring supplies of the drugs used in lethal injections.
The Arkansas Department of Corrections currently lists 25 inmates on its death row. The introduction of nitrogen hypoxia as an alternative method raises questions about when the state will resume executions and whether this new approach will withstand legal challenges. The debate over capital punishment, its ethical implications, and the methods used to carry it out continues to be a contentious issue in Arkansas and across the nation.
The legal battles, moral arguments, and practical challenges surrounding capital punishment remain at the forefront of public discourse, with nitrogen hypoxia becoming the latest focal point in this ongoing debate.
