Alabama Isn't Ready To Kill Inmates By Nitrogen Hypoxia. It Wants To Try Anyway.

James Barber is set to be killed next month, the first execution after a string of botched lethal injection executions in the state.

Alabama can't decide whether it's ready to execute James Barber. 

Barber, a death-row inmate set to be killed on July 20th, has requested to die by nitrogen hypoxia, an as-yet untested execution method approved by the state in 2018. Last month, the U.S. Supreme Court sided with Kenneth Eugene Smith, another Alabama death row inmate who asked to be executed by nitrogen hypoxia, against the state's objections.

While a new execution date for Smith has not been set, officials announced last month that Barber's execution date had been set for summer 2023. Barber was sentenced to death after being convicted for the 2001 beating death of 75-year-old Dorothy Epps.

The state Attorney General's Office requests that the state be legally allowed to execute Barber by nitrogen hypoxia next month; however, the Alabama Department of Corrections insists that the state is not yet ready and needs more time to prepare. The confusion is the latest controversy over the state's execution procedures. 

Barber is scheduled to be the first person executed in Alabama since the state's governor imposed a moratorium on executions following a string of botched lethal injection attempts last year. However, Barber wants to die by nitrogen hypoxia—which involves suffocating the inmate in a gas chamber by increasing the proportion of nitrogen in the air—rather than lethal injection, and has asked a federal court to cancel his lethal injection execution so he can be killed by the alternate method. Barber has claimed he wants to die by nitrogen hypoxia because it will be more humane than death by lethal injection, especially considering the state's recent record. 

State officials have recently sent mixed messages about Alabama's ability to carry out such an execution. In a court filing responding to Barber's request, the Alabama Attorney General's Office wrote that should the U.S. District Court for the Middle District of Alabama side with Barber, "such an injunction should be limited in scope so as to permit Barber's July 20, 2023, execution to be conducted by nitrogen hypoxia."

However, a spokesperson for the Alabama Department of Corrections (ADOC) clarified in an email to Al.com that the department was not ready to carry out a nitrogen hypoxia execution.

"The Alabama Department of Corrections has completed many of the preparations necessary for conducting executions by nitrogen hypoxia," the spokesperson continued. "The protocol for carrying out executions by this method is not yet complete. Once the nitrogen hypoxia protocol is complete, ADOC personnel will need sufficient time to be thoroughly trained before an execution can be conducted using this method."

The state's conflicting messages make it unclear if Alabama will attempt to kill Barber by nitrogen hypoxia next month, should he win his federal case. However, the state's mixed messages are hardly surprising. 

Alabama has displayed a chaotic response following several botched executions last year. While Governor Kay Ivey (R) called for a moratorium on executions in November, pending an investigation into the state's lethal injection procedures, the state did not release its internal audit. ADOC officials made vague promises to increase the number of available staff for executions and rehearse the process. At the same time, Ivey successfully requested the Alabama Supreme Court to allow execution to be attempted over an extended time frame rather than on a specific day, allowing officials to attempt executions for hours or days.

Comments

[Bubba Jones]

It’s not “chaotic” for different people with different responsibilities to have different opinions.

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[Elmer Fudd the CHUD]

Or just chloroform the inmate and chop his head off while he’s out. That way, the quickening isn’t wasted.

[TryLogic]

1. Fill a really big thermos with liquid nitrogen.
2. Add a pressure relief valve to the screw on cap.
3. Toss your murderer into the thermos, headfirst.
4. Screw on cap.
5. Dig a hole in the ground.
6. When finished digging, get thermos with murderer enclosed, roll into hole.
7. Replace dirt in hole on top of thermos with murderer.
Congratulations, you have completed your execution by nitrogen hypoxia training seminar/apprenticeship. Please sign your certification document as you leave.

[SRG]

"Don't forget to fill out the course feedback sheet"

[Public Entelectual]

These are great days for the CO2 Coalition , which revels in heat waves and touts carbon dioxide as "the Gas of Life" despite California's endorsement of CO2 for humanely euthanizing lab rats, If Koch Foundation, long a beneficiary of the CO2 pipeline business, declines to advance freedom of choice in Alabama by donating a cylinder or two, the state can ask the nearest Coca Cola plant to host the pause that refreshes.

[cgr2727]

I'm thinking death would be more of the "instantly frozen and shattered into a million pieces" variety, rather than actual hypoxia. But tomato, tomahto, whatever.

[TryLogic]

Body heat would keep the liquid nitrogen at bay probably long enough to suffocate the murderer with gas- at least that's the working theory. I actually have no real experience suffocating murderers, I was just trying to help out with a strategy I think has a good chance of success. Your hypothesis could be the end result, I'll admit. Still effective though, so probably good enough for government work.

[mad.casual]

What a waste of a perfectly good human-sized thermos/Dewar flask!

[JeremyR]

Wouldn't putting him in an air tight room accomplish this?

[TryLogic]

Yeah, but that would allow him to emit CO2, and we all know how terrible that is, right??

[VendicarD]

I'm sure you do realize that the American grain belt is reverting to desert as a result of atmospheric CO2 levels being more than 1.5 times pre-industrial levels.

I take it that Eating isn't one of your priorities.

[Elmer Fudd the CHUD]

Sure it is comrade, sure it is.

[Illocust]

I think the fear is that this will be a humane way to commit executions without an easy way for activist to pressure suppliers, and will be incredibly difficult for even a high school drop out to botch once implemented. A.K.A. it would undue the decades of work the activists have put into trying to prevent executions through something other than the ballot box.

[Ersatz]

I could see them thinking that.

[AZ]

Death penalty abolitionists have managed to get pressure on some entities who have had or might be sought to have some role in nitrogen hypoxia.

- The state of Oklahoma, which was the first state to pass nitrogen hypoxia execution method legislation in 2015, has since been unable to find any company in Oklahoma willing to manufacture or sell them a device for carrying out the sentence. Prospective manufacturers were worried about being targeted or harrassed by anti death penalty forces should their role become known.

- AirGas Inc, the largest provider of natural gases to the states of Oklahoma and Alabama, refused to have any part in their products being used for nitrogen hypoxia executions.

- Tennessee anti death penalty activists went to the offices of industrial safety consultants FDR Safety and pressured them directly to back out of a contract they had with the Alabama Department of Corrections concerning nitrogen hypoxia.

So the method may be changing, but the organized efforts of death penalty abolitionists to stop executions by hindering the means of carrying them out continues.

[dbs5347]

There is nothing they can do. All that is needed is a relatively air tight space save several vents for the oxygen containing atmosphere to escape as it is replaced by nitrogen. As far as the nitrogen, it's none of Airgass or any other suppliers business what it's used for. I have never had a gas supplier inquire of me if I planned to use their gas to carry out an execution. I'll be happy to supply whatever state needs it all the gas they need to do executions if they can't manage to negotiate the process of getting it themselves without volunteering they intend to off scumbags with it. They can also always go back to hanging. I'm sure they can manage that centuries old technology.

[AZ]

As you are an individual and not a state agency, the likelihood of you using nitrogen for executing someone did not cross their mind when they sold you the nitrogen.

State purchasing requires buying from a set list of approved vendors. These are a matter of public record. Companies which might have a hand in enabling/supplying the means for nitrogen hypoxia do not want bad publicity or harassment from anti death penalty activists or having to testify in court or file affidavits attesting to the efficacy of their product. So many refuse to help.

This is already evident with procurement of chemicals for lethal injections. States that do not have privacy exemptions (shield laws) in state code to keep suppliers of those chemicals anonymous and undiscoverable cannot get those chemicals, thus stopping lethal injection executions from occurring. Louisiana, Ohio and South Carolina are three such states which are unable to presently carry out injection executions due to the absence of a shield law.

[GroundTruth]

You don't even need to deal with a cryogen supplier, just make the LN2 yourself. Back in the days before time, even the cow-college I went to had an LN2 generator in the basement of the chem building. And, as anyone who has worked with LN2 knows, you're quite right, just leave the tank open and the doors and windows shut, and you'll be taking a permanent nap.

Heck, even the folks in Alabama ought to be able to do this.

(Not weighing in the death penalty itself, just the simple administration thereof.)

[MasterThief]

Throughout the article I was thinking about the fact that I have a 50lb. tank of nitrogen and a respirator on my truck that could be rigged up to do the job. This shit isn't rocket science.

[dbs5347]

[sigh] It is for the government. They could F up boiling a small pot of water with the best range made.

[flag58]

++

[mad.casual]

Of course, in this case, more than half the problem is people deliberately trying to fuck them up and then pretend it was government incompetence when anything so mundane as a light bulb burns out during the execution of a serial killer.

Ronnie D lowered the threshold for imposing the death penalty *at sentencing* from 12 to 9 and people flipped their shit. Nothing to do with guilt or innocence and most of them couldn't name or point to one person, besides Nick Cruz, who would/would not have been executed in the change but, after 2019 no less, it was morally incomprehensible and utterly unjustifiable that the state might have even a marginal influence on felons' lifespans.

[Elmer Fudd the CHUD]

Or just smash his head in with the 50 lb. tank. Seriously, it is super easy to quickly kill someone with minimal to no pain. The only reason this is complicated is because of the anti death penalty nut job lawyers that file kitchen sink motions to game the system.

[dbs5347]

No. That would just build up CO2 and is not considered humane. Nitrogen has been used in animal euthanasia for a while. Studies have been done where an animal is rendered unconscious with nitrogen in the gas chamber and then revived, and placed back in the chamber. They exhibit no fear or aversion to the chamber, indicating that there is no unpleasant effect associated with the loss of consciousness to nitrogen hypoxia. This is consistent with the accounts of people involved in industrial accidents with nitrogen gas who remember nothing unpleasant or even unusual from the incident. They were fine and then instantly unconscious as soon as the gas displaced sufficient oxygen. That's why heavy concentrations are so dangerous in industrial settings. There is zero warning that oxygen is being displaced before loss of consciousness.

[cgr2727]

If by "air tight room" you mean a sketchy carbon fiber submarine, then yes, let's give murderers the trip of a lifetime to go see the Titanic.

[MatthewSlyfield]

Other possible high tech execution methods.

Vacuum chamber.

Explosive decompression (messy, but quick if done right)

Note: I generally oppose the death penalty, but if we are going to have the death penalty, I don't think being "humane" is something we should put a whole lot of effort into.

[dbs5347]

Technically there isn't any need to. The SCOTUS has ruled that a punishment must be both cruel and unusual to violate the 8th amendment. Cruel in and of itself is A-OK as is unusual in and of itself.

[SRG]

FWIW Scalia has said (in one of his debates with Breyer) that, in addition, it is wrt what was thought of as cruel and unusual in 1791, not by modern standards.

[Redbrick]

Who cares what he wants? A few rounds of ammo are cheaper and just as effective.

[Nazi-Chipping Warlock]

Exactly. I'll volunteer. Hell, I'll even make the drive out there myself.

[Nobartium]

And there are always enough volunteers to do the job.

[n00bdragon]

I agree. This is disposing of human trash, not a pleasure cruise. Just get rid of him.

[dbs5347]

We used a rope and gravity for centuries. Are those who operate prisons where these things are to be carried out really too stupid to just master that?

[AZ]

No, but they have to be authorized by the Legislature to carry a sentence out by a particular method. Can't just use whatever means to arrive at the same end in these cases.

[cgr2727]

Yes, they are too stupid, but AZ is right that they can't just go do whatever they want; the legislature has a say in it. (Although "can't just go do whatever they want" doesn't seem to apply to beating inmates, misconduct, etc.)

[Jerryskids]

So does Dorothy Epps get a stay of execution or does she stay dead since 2001?

[Elmer Fudd the CHUD]

Exactly. This waste of life has gotten 22 years since he brutally murdered a helpless old woman. Fuck him if he suffers a little before he dies.

[AZ]

Alabama Department of Corrections has had five years to "get ready" for execution via the method of nitrogen hypoxia. They announced that they had constructed a delivery device for hypoxia last year. It involves a mask over the face of the condemned inmate, not a newly constructed enclosed gas chamber as the author of this article suggests.

I think what is happening is Alabama DOC has trepidation about going forward with a heretofore untested method of execution. As such they are, like a young child clinging to the side of a swimming pool or ice rink rather than releasing to learn swim or skate, trying to defer conducting a nitrogen execution for as long as possible.

The inmate James Barber is asking to be executed by that method. As such, he is in effect, waiving any subsequent claims against Alabama should it be carried out. I say let the court decree that he should only be executed by that method and go ahead with it.

[Nazi-Chipping Warlock]

I don't understand how they fucked it up before. It's not that hard to kill people. Just ask Canada.

[AZ]

Fear of a "botch" where something doesn't go right and there is a protracted death or possibly a leak of nitrogen from the mask towards the witnesses etc. Neither of those will happen in my opinion.

History has had other methods of executions conducted with new methods, New York with the electric chair in 1890, Nevada with the lethal gas chamber in 1924, Texas with lethal injection in 1982. But all of those occurred before the arrival of hypervigilant, hyperactive defense attorneys were on the scene, ready to litigate every possible issue.

[dbs5347]

Nitrogen can leak all it wants toward the witnesses. It's 78% of the air they are breathing anyway. There is no reasonable way nitrogen intended to fill the confined space, whether small chamber or mask where the condemned is is going to build to such a level in a properly vented larger surrounding space to cause any problem. Certainly vastly less chance than the hydrogen cyanide that was previously used in gas chambers which is toxic, and fatal at much lower concentrations.

[AZ]

I am in total agreement with you on what you wrote. I was offering possible excuses that ADOC may be telling themselves and/or other interested parties about why they aren't "ready" to use this method.

[dbs5347]

Simple: They did what government always does by making something that should be simple complicated. They have replaced methods like hanging which uses idiot proof gravity to do 90% of the work with methods like lethal injection which require enough technical skill to hit a vein. Medical professionals frequently won’t participate so you are left with somebody with relatively little or no training trying to hit a vein and failing miserably when they could probably tie a hangman’s knot and pull the lever on a gallows with no problem. Gravity would do all the rest for them. If they really insist on an injection shoot them up with about 10 mg of fentanyl sub Q, that will do it many times over. About 100 times more deadly than potassium cyanide.

[AZ]

Alabama death row inmates, having been kept in a 6 x 8 cell for many years on end and having a very poor diet with very limited exercise, come to their executions obese and with very poor venous structures.

Some intentionally abstain from liquid drinking in the days prior to their execution so as to complicate the insertion of IV lines into their bodies. Last July, it took three hours to set up condemned inmate Joe Nathan James with the IV lines. He was ultimately executed.

For inmates Alan Miller and Kenneth Eugene Smith, the setup team jabbed repeatedly for hours on both inmates but were unable to setup IV lines before time ran out at midnight with their death warrants.

[Elmer Fudd the CHUD]

It would be really easy to just break his fucking neck.

[Longtobefree]

Just slit his throat and be done with it.

[dbs5347]

Give hanging a shot. It work well for many centuries. Last time I checked, both gravity and rope still exist.

[DRM]

Just acquire some captive bolt guns. If it's good enough for Bessie, it's more than good enough for James Barber.

[NOYB2]

Why not just hand out free fentanyl pills?

[Stuck in California]

Why pills? From the news stories you just had to be in the same room as it to OD.

[Liberty Lover]

Nothing new, the government isn’t very good at anything, capital punishment is no different.

Gilmore believed a hanging could be botched, so he chose firing squad, declaring, “I’d prefer to be shot.” – 1977
He used a much more graphic f word than “botched”.

[SRG]

And he gave us, "Just do it".

[Honest Economics]

For sound economic perspective go to https://honesteconomics.substack.com/

[R. K. Phillips]

Ha, the article says it's "untested". It is not untested, and will work perfectly if implemented properly: a mask is all that's needed. The bad guy simply becomes unconscious. No issues at all.

[Elmer Fudd the CHUD]

Just tie a plastic bag around his neck and wait for half an hour to be sure. This whole thing is bullshit.

[ThomasD]

Nitrogen does not even require the use of a sealed chamber. Oxygen is heavier than nitrogen so all you would need is a dome over the torso of a seated subject and a steady flow of straight N2 entering from the bottom.

[markm23]

The molecular weight difference is rather small (32 to 28), so I don't think it's enough to keep the gases separate. However, any slightly leaky small room will do if you have a big enough tank of nitrogen. Pure nitrogen flows in, mixed nitrogen, oxygen, water vapor, and carbon dioxide flows out, and pretty soon there's not enough oxygen left to sustain life. Just keep the area outside of the execution chamber very well ventilated, or better yet, outdoors.

(But the poor prisoner may get rained on, sunburned, or cold while waiting. /sarcasm)

OTOH, given Alabama's track record so far, if they were building a death chamber using nitrogen, they'd probably either forget the top and rear side, or build it with:
https://www.mcmaster.com/products/pegboards/pegboards-8/

[NOYB2]

How about we seal them in a carbon fiber shell and give them a free tour of the Titanic?

[Johnathan Galt]

“…nitrogen hypoxia, an as-yet untested execution method approved by the state in 2018. “

It is utterly untrue that the method is untested. We know the mechanism by which the suffocation reflex is activated – it is activated by exactly one thing: Too much CO2 in the lungs. Absent that warning sign, the body has no mechanism at all for being aware of “not enough oxygen.”

Nitrogen hypoxia is utterly indistinguishable from hypoxia suffered by pilots flying too high without pressurization / an O2 supply. All military pilots get to experience it in the altitude chamber. It simply feels like falling asleep.

This should have been the sole method of execution for many decades now. Maybe give them a valium before putting them in the chamber to calm them down, but no need to poison them at all. It’s entirely painless.

Note: Sufferers of painful, incurable diseases used to self-deliver using helium, which (just like nitrogen) is an inert gas. However, kids love to play with helium too - and many died of hypoxia having no perceivable warning they were about to suffocate, so all helium you buy these days for balloons contains about 15% O2. If you or a loved one were contemplating this, don't use helium.