Can Executions Be More Humane?

A law professor suggests an untested procedure as an alternative to lethal injection.

Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma—and now, the proponent of a new execution method he claims would be more humane than lethal injection.

Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian. The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection. Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.

Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation. Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way. Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection.

This isn’t Oklahoma’s first time engineering new execution methods. The modern lethal-injection protocol was first proposed by an Oklahoma state medical examiner named Jay Chapman in 1977. But Copeland, who spends most of his time teaching criminal justice policy, procedure, and research methods, has no background in medicine. This is his first foray into execution technologies.

Hypoxia occurs when a person lacks an adequate supply of oxygen. “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death. It is the lack of oxygen that causes death.”

According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said. “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.” He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established. Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.

The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added. “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”

Since the botched execution of Clayton Lockett last April, Oklahoma’s death row has been in the national spotlight. Lockett died forty-three minutes after the process began—far longer than a typical lethal injection—and appeared to writhe in pain. The Supreme Court is now reviewing the state’s lethal-injection protocol to determine whether or not it is humane. Meanwhile, three scheduled executions in the state have been postponed.

Copeland says that conditions for lethal-injection executions will only get worse. States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place. “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues.

As more drug manufacturers create end-user agreements that prevent states from using their drugs for executions, departments of corrections are searching for other ways to carry out death sentences. The situation is acute. Last week, Akorn became the latest drug company to make rules about how certain drugs are used, South Carolina announced it had run out of drugs, and Texas said it had only one dose of pentobarbital remaining.

Oklahoma is not alone in its quest for new execution methods. The electric chair is Tennessee’s new backup method, while Utah will use the firing squad if lethal injection is not possible. Other states, including Louisiana and Oklahoma, are researching methods involving gas. According to the Death Penalty Information Center, four states have gas chambers as backups to lethal injection: Arizona, California, Missouri, and Wyoming.

From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history. American lethal-gas executions typically used hydrogen cyanide as the mechanism of death. Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.

But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.

Other death-penalty experts are more skeptical. “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center. “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared.

“We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them. I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”

If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says. Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.”

Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice—it’s the state’s obligation,” he explains. “But I don’t think the death penalty is a deterrent compared to life without parole.” If we must have the death penalty, he argues, it should be humane.

Christine C. Pappas, one of Copeland’s co-researchers, echoes this point. In an email exchange, she said that if the Supreme Court invalidates lethal injection as an execution method, it would not necessarily mean the end of the death penalty. States could find other ways to kill. “If we are to have the death penalty, which is something that Oklahomans really want, I believe it should be as painless as possible,” she argues. Pappas is opposed to capital punishment and says she’s faced criticism from abolitionists who think she’s in league with death-penalty advocates.

“What’s missing is the question of whether or not we should be executing people at all,” said Ryan Kiesel, the executive director of the Oklahoma ACLU and a former three-term member of the state House of Representatives. He argues that the state legislature is missing the big picture. “Instead, we’re having this bizarre academic exercise with professors playing doctors dressed up as executioners. Behind all of those masks, there’s no legitimate expertise to help legislators consider this method.”

Kiesel says they need to step back and take a look at facts that are, in his words, an indictment of the death penalty itself. He points to the central role that race and class play into death sentences and to Oklahoma’s ten death-row exonerations. Those factors, he argues, should give legislators pause. “It’s a fool’s errand to inject humanity into something that at its very core is a brutal act,” he added. “You can’t make it more humane.”

But Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs. It will only get worse. Some corrections officials at the Louisiana Department of Public Safety and Corrections agree. On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.

Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing—like you’d rather people not use heroin, but if they do, you want them to use clean needles.”