Ohio House holds first hearing for new nitrogen gas death penalty method

Ohio would join four other states that explicitly permit nitrogen hypoxia for executions if the bill passes

BY: NICK EVANS – Ohio Capital Journal

House lawmakers have begun hearings on a controversial new execution method known as nitrogen hypoxia. The protocol, used in Alabama for the first time recently, subjects a prisoner to a high concentration of nitrogen which causes them to eventually suffocate. Right now, four states explicitly allow nitrogen hypoxia and four other allow for “lethal gas” generally. Outside of Ohio, Nebraska lawmakers are considering the approach as well.

In its initial hearing, Reps. Brian Stewart, R-Ashville, and Phil Plummer, R-Dayton, presented the proposal as procedural update rather than a wholesale change. Currently there are almost 200 people on death row in Ohio, but executions have been on hold since 2018.

“We have a situation today where for six years, we have refused to carry out capital punishment — in violation of the law,” Stewart argued. “It is the law. And until this body votes to do something different, then we need to give (the Ohio Department of Rehabilitation and Corrections) the tools to carry out these sentences.”

“Plan B”

For the most part, Stewart sought to downplay the additional execution method. He cited an example of an inmate requesting nitrogen hypoxia, and defense attorneys arguing they believed the process is “humane” and “completely painless.”

The inclusion of nitrogen hypoxia, Stewart argued, is a way to break up the backlog. Assuming lethal injection is available, death row inmates could select the method of their choice, and in the event that lethal injection drugs are unavailable, nitrogen hypoxia would allow executions to continue.

“In our view nitrogen hypoxia is a plan B,” Stewart described. “It is a set of suspenders to go along with the belt. It would be preferable to continue using lethal injection, but we need to do something.”

Stewart and Plummer presented their idea as a value-neutral response to a stated lack of lethal injection drugs. “Despite his decision to delay the executions,” Plummer said, “Governor DeWine has indicated that the legislature could address this issue by authorizing an alternative method.”

Stewart dismissed criticism of Alabama’s “botched” nitrogen hypoxia execution as death penalty abolitionists speaking in sensational terms. An AP reporter who viewed the execution described Kenneth Smith thrashing and gasping as prison officials administered the gas. Stewart acknowledged their bill isn’t likely to change the minds of people who already oppose the death penalty.

“Respectfully, though, I think there’s another bill for that,” Stewart said, referring to measures in the Ohio House and Senate that would abolish the death penalty.

“This bill is saying we have the law that we have, and until we change it, we need to find a way to carry out what juries have already imposed,” he said.

Pushback

While some inmates may have requested nitrogen hypoxia and some defense attorneys have looked favorably on the protocol, it’s acceptance isn’t universal. The American Veterinary Medical Association, for instance, OK’d the procedure under some circumstances for euthanasia of chickens, turkeys and pigs. For all other mammals, though, the panel warned it’s inappropriate and likely to cause distress.s

“Now, if we’re going to use gas, which, frankly, our veterinarians will not use on our animals, why would we use that on human beings?” state Rep. Michele Grim, D-Toledo, asked.

Stewart argued it’s “vastly more humane” than the violence that put inmates on death row in the first place. He added that in countries where assisted suicide is legal, nitrogen hypoxia is one of the approaches people use.

State Rep. Bill Seitz, R-Cincinnati, meanwhile, said the problem with Ohio’s capital punishment system is the length of time it takes to pursue appeals. “That is the problem in a nutshell,” he said, “plus the unavailability of the three-drug injection.” But he noted if the U.S. Supreme Court hasn’t explicitly blessed the protocol, the proposal might just lead to more appeals.

“To my knowledge,” he said, “the United States Supreme Court has only signed off on hanging, electric chair, firing squad, and lethal drug injection as being constitutional — don’t violate the Eighth Amendment.”

“I believe what you’re saying about nitrogen hypoxia,” Seitz added, “but it hasn’t yet been blessed, if you will.”

Stewart argued the likelihood of nitrogen hypoxia passing muster in the court is high, but added their preferred method remains lethal injection. Notably, nothing about the long and complex appeals process unique to death penalty cases will change under Stewart and Plummer’s measure.

Follow OCJ Reporter Nick Evans on Twitter.