The revelation was made Monday at a court hearing on inmate Alan Miller’s request to block his scheduled Sept. 22 execution by lethal injection. Miller claims prison staff lost paperwork he returned in 2018 requesting nitrogen hypoxia, an execution method the state has approved but never used. U.S. District Judge R. Austin Huffaker Jr. asked if Alabama was ready to carry out executions by hypoxia. James Houtz, the state’s deputy attorney general, said the method could be available as soon as next week. He said, however, that the final decision on when to use the new method will rest with Corrections Commissioner Jon Hamm. The Alabama Department of Corrections did not respond to an email seeking comment on the status of the proposed new execution method. Here is what is known about nitrogen hypoxia: WHAT IS NITROGEN HYPOXIA? Nitrogen hypoxia is a proposed method of execution in which death would be caused by forcing the prisoner to breathe only nitrogen, thus depriving him of the oxygen he needs to maintain bodily functions. HAS IT EVER BEEN USED? No. No state has used nitrogen hypoxia to carry out a death sentence. In 2018, Alabama became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. However, lethal injection remains the state’s primary method of execution. HOW IS IT SUPPOSED TO WORK? Nitrogen makes up 78% of the air that humans breathe and is harmless when inhaled with oxygen. The theory behind the execution method is that changing the composition of the air to 100% nitrogen would cause the prisoner to pass out and then die from lack of oxygen. WHY DID THE STATES PROPOSAL THE NEW METHOD? States began to propose nitrogen hypoxia as an alternative method of execution due to the difficulty of obtaining lethal injection drugs and the ongoing litigation over the humaneness of lethal injection. Proponents have argued that nitrogen hypoxia would be a simpler and more humane method of execution. Then-Sen. Trip Pittman, a Republican lawmaker who sponsored the 2018 legislation, thought it would be similar to how airline passengers pass out when a plane decompresses. WHAT ARE THE CONCERNS? Critics have likened the untested method to human experimentation. “It’s completely untested,” said Robert Dunham, executive director of the Death Penalty Information Center. No state has released a protocol outlining how it would work. While advocates have argued it would be quick and painless, Dunham noted that states once said the same thing about the electric chair. The American Veterinary Medical Association’s euthanasia guidelines say that inert gas hypoxia is acceptable, under certain conditions, for the euthanasia of chickens, turkeys and pigs, but is not recommended for other mammals such as rats. HOW WOULD ALABAMA PERFORM AN EXECUTION BY NITROGEN HYPOXIA? Unknown. The state has released little information about the proposed method. Most of the available information comes from court proceedings. The Alabama Department of Corrections told a federal judge last year that it had completed a “system” for using nitrogen gas, but did not describe it. During a Sept. 11 court hearing, an attorney for the state said they asked Miller if he would agree to be fitted with a mask, an indication that the state may intend to place face masks over the nose and mouth of inmates. WHAT IS HAPPENING IN OTHER STATES? Oklahoma, which in 2015 was the first state to approve the use of nitrogen gas for use in executions, has not finalized plans to use it. The state has resumed lethal injections. Department of Corrections emails obtained by The Associated Press show the agency’s former deputy director of operations contacted a manufacturer of reduced-oxygen breathing units used to help train pilots on the signs and symptoms of hypoxia. The company president responded that she did not believe executions would be an appropriate use of the product and that she had concerns about potential liability. WHAT HAPPENS NEXT? Alabama is working to finalize a protocol for using nitrogen hypoxia, Houtz told the judge. Steps should be added to the existing state protocol outlining the procedures for an execution using the electric chair or lethal injection. He said Alabama’s prison commissioner has the final say on when to allow its use. If the state decides to proceed with the method, an appeal is expected. Lethal injection will remain the primary method of execution in Alabama. However, when Alabama approved nitrogen hypoxia in 2018, state law gave inmates a short window to choose it as their preferred execution method. Some prisoners chose nitrogen.
