The Uncertain Future of Nitrogen Gas Executions in the United States

The execution of Jessie Hoffman in Louisiana marks a significant and controversial moment in the ongoing debate surrounding capital punishment in the United States. While Alabama pioneered the use of nitrogen gas as a method of execution last year, declaring it a humane alternative to lethal injection, its broader adoption remains uncertain, fraught with legal challenges and ethical concerns.

Louisiana’s decision to proceed with Hoffman’s execution after a series of court rulings underscores the complexities and divisions surrounding this method. Hoffman, convicted for the kidnapping, rape, and murder of Molly Elliott in 1996, faced execution after the U.S. 5th Circuit Court of Appeals overturned a lower court’s stay, paving the way for the controversial procedure. His attorney has pledged to appeal to the U.S. Supreme Court.

Alabama’s Attorney General Steve Marshall has championed nitrogen hypoxia, the process of oxygen deprivation leading to suffocation, as "textbook," "humane," and "effective." Following Alabama’s initial execution using this method, Marshall encouraged other states to follow suit. Several states, grappling with difficulties in acquiring drugs for lethal injections, have considered or are considering legislation to add nitrogen gas to their execution options.

However, capital punishment experts remain skeptical about widespread adoption. Megan Byrne, a senior staff attorney at the American Civil Liberties Union’s Capital Punishment Project, believes that while a few states may embrace this method, it’s unlikely to become the norm. The outcome of the Louisiana case could significantly influence how other states navigate potential legal challenges.

The 5th U.S. Circuit Court of Appeals, known for its conservative leanings, played a crucial role in allowing Hoffman’s execution to proceed. The court’s decision highlights its position as a testing ground for contentious legal issues. Although the U.S. Supreme Court has previously intervened to curb the court’s power, it has also permitted Alabama and other states to explore the use of nitrogen gas.

Concerns about the humaneness of nitrogen gas executions stem from witness accounts of the execution of Kenneth Eugene Smith in Alabama in January 2024. Reports described Smith experiencing visible suffering, including conscious terror, shaking, gasping, and other signs of distress. These accounts influenced Chief District Judge Shelly Dick’s initial decision to delay Hoffman’s execution in Louisiana.

Another Alabama inmate, David Phillip Wilson, has filed a lawsuit similar to Hoffman’s, arguing that execution by nitrogen gas violates the Constitution’s prohibition against cruel and unusual punishment. Wilson’s case cites Smith’s execution as an example of "torturous" suffering. The evidence gathered from Smith’s execution and others could strengthen future legal challenges against the use of nitrogen gas.

The Supreme Court’s three liberal justices have expressed reservations about nitrogen gas executions. They criticized the majority’s decision to allow Smith’s execution, arguing that he should have had more time to pursue legal challenges and that more needed to be known about the procedure.

Deborah Denno, a law professor at Fordham University, highlights that while the Constitution does not guarantee inmates a painless death, judges have previously deemed certain execution methods cruel and unusual. The high courts in Georgia and Nebraska banned electrocution, and a circuit judge in South Carolina found both the firing squad and the electric chair unconstitutional, although the latter decision was later overturned.

The ongoing litigation surrounding nitrogen gas could deter other states from adopting it. However, Denno points out that states with the death penalty have demonstrated a persistent "desperation" to carry out executions despite legal challenges and botched executions using other methods. This desperation may outweigh concerns about the legal risks associated with nitrogen gas.

Mississippi and Oklahoma have already authorized nitrogen hypoxia as an execution method, although it has not been used. Steven Harpe, director of Oklahoma’s prison system, visited Alabama to study its nitrogen gas protocol and expressed his willingness to use the method. However, the governor of Oklahoma has indicated no plans to change the state’s execution process.

In Arkansas, a bill approving the use of nitrogen gas awaits Governor Sarah Huckabee Sanders’ signature. Similar bills have been reintroduced in Ohio and Nebraska, while a bill sponsored by the Kansas attorney general died in committee last year.

Austin Sarat, a professor of jurisprudence and political science at Amherst College, cautions that simply authorizing an execution method does not guarantee its implementation. States like Louisiana have turned to alternative methods like nitrogen hypoxia due to difficulties in procuring drugs for lethal injection. If those drugs were readily available, nitrogen gas might not be considered.

Former President Donald Trump issued an executive order directing the attorney general to assist states in securing lethal injection drugs. However, experts say the federal government’s ability to resolve the issue is limited, as pharmaceutical companies are generally unwilling to provide drugs for lethal injections.

Another potential challenge for states seeking to use nitrogen gas is securing a supply of the gas itself. Multiple manufacturers of medical-grade nitrogen gas have stated that they will not allow their product to be used in capital punishment. While nitrogen gas is currently easier to obtain than lethal injection drugs, this could change.

Even with Trump’s support for the death penalty, public support for capital punishment in the U.S. has been declining. A 2024 Gallup poll found that support for the death penalty has fallen to 53%, a level not seen since the early 1970s. Several states with the death penalty have not carried out executions in years.

Smith’s execution in Alabama drew criticism from experts and human rights organizations, including the United Nations High Commissioner for Human Rights and Amnesty International, who condemned it as particularly inhumane. Hoffman’s execution has also faced protests, including from the Jews Against Gassing Coalition, who draw parallels between the method and the gas chambers used during the Holocaust.

Sarat concludes that nitrogen gas is unlikely to become the "safe, reliable, and humane" execution method that the country has been searching for. He anticipates that the problems associated with executions, including unreliability and gruesomeness, will continue to plague the system. The debate surrounding nitrogen gas executions highlights the ongoing moral, legal, and practical challenges associated with capital punishment in the United States.