25 October 2023 :
October 24, 2023 - Use of Nitrogen Hypoxia for Alabama Executions Could Endanger Spiritual Advisors and Prison Staff in the Execution Chamber
In August, Alabama released the first-ever execution protocol for nitrogen hypoxia, an untested execution method in which prisoners will be put to death by suffocation as they are forced to breathe pure nitrogen gas. Alabama’s heavily redacted protocol provides that prisoners will be fitted with a mask and breathing tube to control the gas, which will slowly deprive them of oxygen. However, use of this untested method may also pose dangers to spiritual advisors and prison staff in the execution chamber.
In 2022, the Supreme Court ruled in Ramirez v. Collier that death-sentenced prisoners have a right to the assistance of spiritual advisors in the execution chamber under federal law, a right which includes permitting advisors to touch the prisoners and pray aloud during the execution. The petitioner in that case, John Henry Ramirez, was executed by lethal injection on October 5, 2022 after his pastor laid a hand on his chest and recited a prayer. In its ruling, the Court described centuries of tradition of religious leaders ministering to the condemned before and during their executions. “Being present, being there, standing with those who are oppressed is one of the most important things we can do,” says Reverend Melissa Potts-Bowers, who ministered to Michael Tisius of Missouri during his execution on June 6 of this year. “Remaining in that chamber is one of the most important privileges for us to protect.”
However, Alabama’s recently published execution protocol may affect that right by permitting spiritual advisors in the chamber only if they accept the risk of harm to themselves during the execution. The protocol states that “no spiritual advisor or alternate spiritual advisor shall be allowed in the execution chamber unless they review and sign the spiritual advisor nitrogen hypoxia acknowledgement form.” The acknowledgement form advises in bold:
“In the highly unlikely event that the hose supplying breathing gas to the mask were to detach, an area of free-flowing nitrogen gas could result, creating a small area of risk (approximately two (2) feet) from the outflow. Additionally, overpressure could result in a small area of nitrogen gas that displaces the oxygen in the area around the condemned inmate’s face and/or head.”
Even a two-foot range could expose spiritual advisors and staff to severe risk. Alabama’s protocol does not mention any waiver or form for prison staff assisting in executions, but contains rules for staff that acknowledge the danger of the gas. The protocol holds that no staff member may enter the chamber unless the following criteria are satisfied: a wall-mounted display showing at least 19.5% oxygen in the atmosphere, a staff member observing the door outside “from a safe distance,” and an additional staff member standing at the door to “ensure the safety” of any staff engaging with the gas system.
Nitrogen gas has never been tested in an execution setting but has caused serious injury and death in industrial accidents. According to the Occupational Safety and Health Administration (OSHA), fourteen people died of nitrogen asphyxiation in the workplace between 2012 and 2020. In 2021, a nitrogen leak at a poultry plant in Georgia killed six people and hospitalized eleven. Liquid nitrogen used as a refrigerant leaked into the air, where it vaporized into a fog that surrounded hundreds of employees. Alabama’s protocol appears to require preventative measures by staff such as reviewing “training materials on dangers and hazards associated with nitrogen gas in the workplace,” visual inspection of the mask and gas canisters, and listening for the sound of a gas leak. However, the protocol provides no guarantee of safety for persons in the death chamber, nor does it address how the State will prevent the gas escaping the chamber and affecting witnesses in the event of an accident. According to anesthesiologist Joel Zivot, nitrogen gas “is dangerous to anyone in the vicinity.”
In the past ten years, as states struggled to procure lethal injection drugs, Alabama, Oklahoma, and Mississippi all authorized the use of nitrogen gas as an alternative method of execution. In 2018, Alabama required each death-row prisoner to elect either lethal injection or nitrogen hypoxia as their preferred method. While Alabama still had a supply of drugs for lethal injection, the State conducted a string of three botched lethal injection executions in 2022, resulting in a temporary pause on executions. Two of the men, Alan Miller and Kenneth Smith, survived the execution attempts. The State resumed executions earlier this year and asked the Alabama Supreme Court in August to set the first nitrogen hypoxia execution date, for Mr. Smith, releasing its protocol alongside the request. Mr. Smith’s attorneys filed an opposing motion arguing that he should not be required to be the “test subject” for a novel and untested execution method.
