Critics called 2022 “the year of the botched execution”—and it was indeed an infamous period, mainly because the state of Alabama lost the ability to competently kill prisoners in its charge while retaining the sovereignty to try.
On July 28, Alabama executed Joe Nathan James Jr., a convicted murderer. And, for some reason—the precise cause remains a mystery because of the extreme degree of confidentiality the state guarantees its executioners—the execution team working that night botched their task badly, piercing James all over his body before evidently cutting into his arm, presumably in search of a visible vein in which to insert an IV catheter. They nevertheless managed to kill him, the results of their work clear in the early-August autopsy I witnessed. I left that experience convinced that Alabama’s next execution would also likely unfold against protocol.
With that in mind, I headed to Alabama again on September 22, the scheduled execution date of another man, Alan Eugene Miller. I was there that night when, after an hour or more of failed attempts, executioners exhausted their efforts at getting two needles into two of Miller’s veins, and state authorities called off his death.
Undaunted by its two consecutive failures in the execution chamber, Alabama promptly scheduled another death-row prisoner, Kenneth Smith, to die. I immediately made Smith’s acquaintance and agreed to attend his killing as well. On November 17, Alabama again tried and again failed to execute its man. Smith spoke with me later that night, once he was back in his cell, and told me how his would-be executioners had pierced his arms and hands and finally his neck underneath his collarbone before abandoning their efforts.
At that point, Alabama finally acknowledged what had been clear to me since early August: Inside the state’s execution chamber, there is a crisis deserving of investigative review. On November 21, Governor Kay Ivey ordered a temporary halt to executions so that the Alabama Department of Corrections could assess its execution methodology and personnel before moving forward. But this is not to say that Alabama is evolving; if notions of progress were distributed evenly among the states, this would be the point in the story where I would be able to report that this series of botched executions had caused Alabama’s leaders to consider abandoning the death penalty altogether. Instead, Alabama is choosing a path of technical, rather than moral, innovation.
The state appears to be preparing to premiere a new kind of execution by lethal gas. In the gas chambers of old, little cells were filled with poison that eventually destroyed the organs of the trapped prisoners, resulting in death. Now Alabama proposes to use nitrogen gas to replace enough oxygen to kill via hypoxia, an untested method once imagined in a National Review article and made manifest in a plastic gas mask.
Chief Justice Earl Warren made a certain presumption about the relationship between moral and technological progress, and that presumption shaped his interpretation of the Eighth Amendment, which bans cruel and unusual punishment. It went like this: As societies develop, their moral sensibilities tend to become more refined as well. Or, as Warren put it, writing in Trop v. Dulles, “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In other words, Americans ought to aspire to more and more humane means of punishment, and the law ought to be understood as cooperative in that effort.
And yet, though several methods of execution have fallen into disfavor across history, the Supreme Court has never formally banned one, instead allowing states to choose from many archaic ways to kill prisoners. Lethal gas, for example, remains an artifact of the past and a specter of the future, both lethal injection’s inferior predecessor and its current statutory alternative in a small number of states—Alabama among them.
America’s executions with gas began roughly 100 years ago, at the outset of a century that would witness the industrial-level use of cyanide in Germany’s death camps. Scott Christianson’s book The Last Gasp: The Rise and Fall of the American Gas Chamber notes an inflection point in America’s experiment with gas in March of 1921, when Nevada Governor Emmet Boyle signed the Humane Execution Bill into law, requiring future executions to be carried out with lethal gas. The new law endeavored to replace older, uglier methods—hanging and electrocution—with a manner of dying that was promised to be painless and bloodless. Instead, on February 8, 1924, Nevada prison officials led the Chinese immigrant Gee Jon to a converted stone barber house that would be flooded with a gaseous form of hydrocyanic acid commercially known as cyanogen, a highly toxic substance used industrially to manufacture fertilizer and exterminate insects. Witnesses watched through the brick outbuilding’s window that morning as Gee gasped and convulsed amid the haze of lethal gas that filled the chamber. One military physician who observed the execution that day would later report that the death house’s heating had failed, causing the gas to partially liquefy rather than vaporize, then collect on the floor of the chamber where it remained in a deadly pool for hours after Gee’s death. That same physician would also later speculate that Gee, who had been poisoned on a frigid day at roughly 9:45 a.m. and who was not removed from his shackles until after noon, had likely died of cold and exposure.
Nevertheless, the execution was hailed as a coup for progress: Finally, after all of the bodies twisting on nooses and smoking under electrocution hoods, there was a scientific, humane execution method. Around the world, people took note: In Soviet Russia, Leon Trotsky was certain that America would soon turn its dastardly weapons on revolutionary Europe; in Germany, the news was met with great interest by researchers for the cyanide industry and budding fascists alike.
More than 600 people have died in American gas chambers since Nevada’s 1924 experiment. Remarkably, states used gas to execute prisoners even after the term gas chamber became synonymous with Nazi Germany. Though the chamber had promised instantaneous and painless death, the ugliness and risk of its application eventually made it the country’s shortest-lived method of execution, Deborah Denno, a professor at Fordham University School of Law, told me. In plain view of witnesses, prisoners died screaming, convulsing, groaning, and coughing, their hands clawing at their restraints and their eyes bulging and their skin turning cyanic.
The last of them, Walter LaGrand, was killed in Arizona in 1999. Despite the length of time separating his death from Gee’s, he endured a similarly troubled execution: LaGrand, a German-born American who was convicted of murder, gagged and hacked and then died over the course of 18 minutes. Knowing what prison authorities intended to do well before they strapped LaGrand into the black harness that would contain his body as he choked on poison gas, the government of then–German Chancellor Gerhard Schröder had tried diplomatic interventions to save the man’s life. The irony was lost on Arizona.
Alabama has something slightly different in mind. Nitrogen hypoxia is the dream of Stuart Creque, a technology consultant and filmmaker who, in 1995, proposed the method in an article for National Review, in which he speculated optimistically about the ease and comfort of gas-induced death. After hearing about the potential of nitrogen hypoxia as a lethal agent in a BBC documentary, Oklahoma State Representative Mike Christian brought the idea before Oklahoma’s legislature in 2014 as an alternative to lethal injection. Oklahoma passed a law permitting the use of nitrogen hypoxia as a backup method of execution in the event that lethal injections could no longer be carried out. Mississippi passed similar legislation in 2017; Alabama followed in 2018. With Missouri, California, Wyoming, and Arizona (which have older lethal-gas statutes still on the books), these three nitrogen-curious newcomers make up the handful of governments that could begin attempting to execute people with lethal gas at any time. (The Alabama Department of Corrections did not immediately reply to a request to comment for this article.)
Alabama is by no means the ablest of these states, but it is among the more eager. Since the governor announced an execution moratorium pending an investigation, Alabama’s attorney general, Steve Marshall, has been adamant that the killings will resume as soon as possible. “Let’s be clear,” Marshall recently said at a press conference he called to dispense his thoughts on the subject. “This needs to be expedited and done quickly, because we have victims’ families right now asking when we will be able to set that next date and I need to give them answers,” adding that “justice delayed is justice denied.”
Court papers provide clues about where Marshall’s insistence upon speedy executions translates into an interest in gas. Earlier this year, Marshall’s deputy attorney general, James Houts, brandished a gas mask during the deposition of Alan Eugene Miller, one of the men the state tried and failed to execute via lethal injection this fall, and asked Miller if he would be cooperative if prison officials attempted to fit the mask to his face or if he would be upset by the process. A witness to the event described the mask as a large plastic covering that would obscure most of the face, and which was to be locked in place by wide lime-green straps arrayed around the mask like the fixtures of a headlamp. Houts all but assured Miller’s attorneys and a district-court judge that Alabama would be prepared to execute Miller on September 22 of this year via nitrogen hypoxia, though he could not say directly and unequivocally that the state had actually finished developing its nitrogen-hypoxia execution protocol.
Unsurprisingly, Alabama officials weren’t ready, and thus they attempted to kill Miller this fall with the usual cocktail of lethal drugs piped in via needle. Still, their presentation with the gas mask during Miller’s proceedings demonstrated something useful about their approach: Unlike the gas houses of yesteryear, the state is evidently preparing to use a sealed mask attached to some source of nitrogen gas in order to induce hypoxia in a restrained prisoner. For this method of execution to kill successfully, the state will need access to the mask and its tubing, nitrogen gas or its precursors, a sealed chamber for the safety of bystanders, and a detailed plan.
Nitrogen is cheap and widely available, but also extremely dangerous. It has been used as a method of suicide and has killed people in industrial accidents. Deployed at a prison, it could pose a risk to staff in the event of leaks. Just last year, a liquid-nitrogen leak at a Georgia poultry facility resulted in six deaths and 11 hospitalizations. The Alabama Department of Corrections is aware of these risks: James Houts admitted during a court hearing in November that “the fact that there’s nitrogen gas stored in a certain place” presented “the dangers of inert-gas asphyxiation to employees.”
Houts added that the state had attempted to contract with a Tennessee-based firm to diagnose and improve its gas-execution system. But that firm terminated its contract with the state in February of this year after protests from local religious leaders, leaving the ADOC without an obvious alternative. This month, a spokesperson for Airgas, a national industrial-gas distributor that has done business with the ADOC in the past, told me over email that “notwithstanding the philosophical and intellectual debate of the death penalty itself, supplying nitrogen for the purpose of human execution is not consistent with our company values. Therefore, Airgas has not and will not supply Alabama nitrogen or other inert gasses to induce hypoxia for the purpose of human execution.” Airgas’s spokesperson added that the company’s contact in Alabama had been notified of this position upon my outreach. Few vendors, it appears, want to be directly involved in America’s return to the gas chamber.
Alabama will need a finished protocol taking all of the above into account before it is ready to execute the first American by nitrogen hypoxia. As of this fall, state officials seemed not to have one. It would take a certain audacity to be the first state to test an unknown means of execution immediately following three consecutive botched executions. But Alabama’s administrators are nothing if not audacious.