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After Lethal Injection

Three states, three ways to kill a human being.

T he Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment. Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life. In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair. Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution.

“A Perfect Killing Device”
In Oklahoma, people can be executed by inhaling nothing but nitrogen.
Other methods: Electric Chair Firing Squad

A s its fight to preserve lethal injection is decided by the Supreme Court, Oklahoma already has a replacement lined up — execution by nitrogen gas, which has never been tried before in any execution chamber in the world. Oklahoma’s two-page law offers no specifics as to how the new procedure would be carried out; it simply states that if lethal injection becomes unavailable, “nitrogen hypoxia” will be the go-to method.

The protocol would likely involve placing some type of mask over the condemned inmate’s head and pumping it full of 100 percent nitrogen, thereby depriving that person of oxygen. The inmate would die not by suffocation, which is caused by an inability to exhale and a subsequent (and very painful) buildup of carbon dioxide in the body, but rather by becoming gradually oxygen-deprived, which is essentially painless.

To proponents of nitrogen as a method of execution, the gas is a more humane alternative because it withholds life (oxygen) rather than administering death (using paralytics, guns, electricity). But critics argue that it’s not execution by nitrogen that Oklahoma has proposed; it’s experimentation with nitrogen. “What Oklahoma is doing is not a scientific endeavor,” said Joel Zivot, an anesthesiologist at Emory University. “I can’t put my scientific head to it. Not only is there no medical indication whatsoever for nitrogen gas, the question of whether nitrogen inhalation would be ‘effective’ and painless cannot ethically be studied by the medical profession.”

“How this will work is known only to them,” Zivot added. “It’s nonsense, empirically.”

Given how quickly they introduced “nitrogen hypoxia” as a method of execution — the bill was officially introduced on February 2 of this year and signed into law by April 17 — and how little scientific information they had at their disposal — YouTube videos of teenagers inhaling too much helium and then fainting were shown at the hearings — Oklahoma’s legislators may not know exactly how this will work, either.

But they seem confident. State Sen. Ervin Yen, himself a doctor, told The Marshall Project, “When they first proposed it, I said, ‘I’ve never heard of such a thing, but I suppose that might work.’ Not that I’ve ever executed someone. But I assume somebody must have done some research.”

The bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die. You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.”

Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”

Wondering if the procedure could be successfully outfitted for Oklahoma's executions, Christian called up a high school friend, Michael Copeland1. Copeland and two other professors at a local university (none of whom are doctors or scientists) got together to study the nitrogen option and produce a report for the legislature. “We probably talked about it for three hours,” said Christine Pappas, one of the coauthors. Pappas said they also “met the night before we testified” to plan their presentation.

Michael Copeland1Copeland’s credentials include a stint as the attorney general of the tiny island nation of Palau, and a teaching job at the even tinier East Central University in Ada, Okla. He originally came to Oklahoma to help Rep. Christian get elected; in 2013, they both were implicated in a bribery scandal.

The report claims that “there have been medical experiments” on nitrogen hypoxia, but does not mention what the merits are of the research. The bibliography lists 15 sources, including papers dated 1963 and 1977, opinion articles in Slate and the National Review, and documents from the Final Exit Network, a right-to-die advocacy group.

When the report was presented to them, Oklahoma’s legislators nodded along as Copeland described the use of "exit bags" by pro-suicide acolytes of Jack Kevorkian, the famous euthanasia activist.

The lawmakers were quickly convinced2. Said Rep. Mike Ritze, “Oh, we all bought in pretty much right away. There wasn’t much debate that I can recall.”

quickly convinced2The few holdouts were disappointed only that nitrogen hypoxia might cause euphoria, however briefly. “They didn’t want the inmate to feel good while dying,” said Pappas. “They wanted pain.”

The state of Oklahoma has always been “the nation’s laboratory for capital punishment,” said Austin Sarat, a professor of jurisprudence at Amherst College and an expert on the death penalty.

In 1977, when the electric chair and the firing squad were falling out of favor, an Oklahoma legislator named Bill Wiseman went to his family physician and asked how humans could most humanely be executed. Wiseman’s doctor suggested lethal injection.

Months later, with the help of the state’s medical examiner, Jay Chapman, Wiseman had pushed through the legislature (by commanding margins) a bill naming lethal injection as Oklahoma's newest execution protocol. The statute was vague on the particulars of how the new procedure would work, but legislators touted it as a more humane, visually palatable, foolproof, and cost-effective method of putting people to death.

Sarat said that this early history of lethal injection is “not similar, it is identical” to the current rollout of the nitrogen method. “They took the same no-science, cavalier attitude as they are now,” with concerns about “the aesthetics of humaneness trumping the lack of evidence about what was actually humane.”

The arguments for nitrogen are straightforward. Nitrogen makes up most of the air we breathe, and isn’t poisonous in and of itself, so executioners and witnesses would not be in danger if some of it were to leak. It is odorless and tasteless, meaning that a condemned inmate would not realize when he had started breathing it. It is also cheap and available for purchase3 — from industrial manufacturers, rather than medical companies, who have ethical reasons for withholding drugs like midazolam and pentobarbital.

available for purchase3Nitrogen is available from a variety of wholesalers; it is used for fracking, welding, inflating tires, manufacturing beer and air-sealed snacks, and purging sensitive rooms of oxygen, to prevent fire and/or rust.

But implementation remains an open question. Will gradual or rapid exposure to a full concentration of the gas be more effective and less distressing? Will non-medical staff be any better at securing a mask — keeping a perfect, airtight seal — than they have been at finding a vein for an IV? What about the room where the gas would be administered? Existing facilities are not airtight, and if even the smallest amount of oxygen seeps in, the death may be prolonged.

And what if the inmate resists? As Zivot points out, “There is a huge difference between someone accidentally (or intentionally) breathing pure nitrogen, versus forcing them to breathe it. We have absolutely no evidence about what will happen if a human being is thrashing and breaking the seal of his mask, or refusing to breathe, which might delay the whole thing and lead to carbon dioxide painfully accumulating in his lungs.”

In the absence of any real scientific consensus on what would happen if a human being were forcibly rendered hypoxic, those hoping to make sense of Oklahoma’s new protocol can only turn to seemingly unrelated fields of study — industrial accidents, air travel, deep-sea diving, veterinary medicine, and assisted suicide — for enlightenment.

When the cabin of a plane loses its air pressure, for example, the ratio of nitrogen to oxygen quickly soars (that’s why those oxygen masks are deployed).

Retired Air Force pilot Ross Detwiler, who has written about hypoxia after experiencing it in an altitude chamber, says the feeling is similar to “getting up after sitting in a lounge chair for a long time.” But, he cautions, “it’s more painful for those trying to stay awake than it is for those who say, ‘Oh, I’ll go to sleep, I’ll be fine…’”

Bret Gilliam4, a diving consultant for the Navy and Coast Guard, says that diving too deep without any oxygen also leads to a nitrogen-caused blackout, but “would initially invoke panic and distress due to no metabolic gas to sustain” the nervous system's calm functioning. Gilliam notes that every person has a different reaction, but those already experiencing anxiety or fear — say, someone about to be executed — tend to feel the worst.

Bret Gilliam4Gilliam's record-setting dive in 1990 was considered physiologically impossible before he completed it, because he would be breathing almost pure nitrogen.

Veterinary literature, the only true science on the topic, offers a mixed bag. During a Canadian experiment in the 1970s, cats and dogs that were forced to breathe pure nitrogen continually howled and convulsed. But it was unclear to observers whether those were automatic reflexes or vocalizations of pain. And the American Veterinary Medical Association’s 2013 Guidelines for the Euthanasia of Animals state that nitrogen asphyxiation is not appropriate for dogs, cats, and lab animals, because they become aware that they are being killed while still conscious.

Only in cases of assisted suicide has an inert gas like nitrogen been used to kill human beings intentionally — and even then, the preferred gas is usually helium from kids’ balloons, not nitrogen.

Says Derek Humphry, founder of the Final Exit Network, “My first thought when I heard what Oklahoma was doing was, ‘Hm, that’s interesting. How are they going to administer that? Even we who are interested in dying have never much used nitrogen.’”

Philip Nitschke5, the founder of Exit International, another right-to-die group, says that nitrogen inhalation would be similar to suicide by helium — but that it would “require the total cooperation of the person who is dying. This is a significant difference between someone being executed and a person desperate to die. One must willingly exchange the gas in their lungs,” or else it will be “certainly distressing.”

Philip Nitschke5Nitschke also claims that he has noticed a surge in nitrogen sales lately among those wanting to kill themselves — because of “the endorsement the gas is getting from the Oklahoma decision.”

Though nitrogen itself is unproven, executions in gas chambers have a long and morally fraught history, not only in Europe during the Holocaust but also in the United States. First introduced in Nevada in 1921, the gas chamber’s early history6, like that of lethal injection, is eerily familiar. Under-credentialed experts promised that the new cyanide gas would “not act as a poison in the usual sense of the word; it merely deprives” the condemned of oxygen. A “Humane Execution” bill passed the Nevada legislature almost unanimously. The specifics of the procedure itself were left to prison officials (though the cyanide was at least tested on two kittens and a sample of bedbugs).

the gas chamber’s early history6Detailed in "The Death Penalty: An American History," by Stuart Banner.

On that minimal scientific foundation, the gas chamber was adopted by 12 states, and would ultimately be the chosen method for almost 600 executions, over 30 of which were botched.

In many of those cases, inmates drooled, writhed, gasped, and retched while they died. Their hearts stopped and started again; their skin turned red and green. After one particularly disastrous execution in an Arizona gas chamber in 1992, reporters were in tears, the attorney general had vomited, and the warden said he would resign if he ever had to oversee another gassing.

The question in Oklahoma is not whether capital punishment should continue, but how. The state has led the nation in executions per capita for four decades and counting, and appears determined to keep it that way. As Yen put it, “In Oklahoma, we’ve got the death penalty. All, or most, of us are for it. So we’re pretty open to a new procedure.”

But to be successful in the long run, the new protocol must be one that the society at large can countenance — a method that looks peaceful and seems clinical, or at least clinical enough. Enter nitrogen gas. As Zivot said, “People will imagine this is scientific because of the terminology. Nitrogen. Hypoxia. But really it’s just about maintaining capital punishment, and they will gladly impersonate science to do that.”

“It Was a Ghastly Occasion”
Tales of “Old Sparky,” featuring Thomas Edison, Julius and Ethel Rosenberg, and the man whose head burst into flames.
Other methods: Nitrogen Gas Firing Squad

I t’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another. And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases.

Until last year, the condemned in the state — those who were convicted before 1999, anyway — were given the option of choosing either lethal injection or the electric chair as their means of death. The last man in Tennessee to opt for and receive a deadly jolt was Daryl Holton, a man who shot to death his three young sons and their half-sister, and who was himself killed in 2007. His last lawyer, who witnessed the execution, later wrote that his client was waiting to die “with this helmet on his head and salt water slowly trickling down his cheeks.” The chair used was not the original one the state began using in 1916. That chair, built of wood salvaged from the gallows used until the state ended hanging in 1913, was “retired” from active service in 1989.

No matter what the U.S. Supreme Court decides in the upcoming Oklahoma lethal injection case, the constitutional questions about the electric chair are likely to persist. In 1999, the Court was poised to hear a Florida challenge to the use of the chair (more on that below) but then avoided a ruling on the merits when the state hurriedly agreed to permit the use of lethal injection as a capital option.

In the meantime, I reached out to three scholars and practitioners who have spent a great deal of their professional lives thinking about capital punishment in general and the electric chair in particular. I asked each of them to share with me the one “fact” about the electric chair that they find particularly compelling.

Richard Moran, a professor of sociology at Mount Holyoke College, literally wrote the book about the history of the electric chair. In “Executioner’s Current: Thomas Edison, George Westinghouse, and the Invention of the Electric Chair,” he chronicled the life and times (and death) of William Kemmler, the first person to die in the electric chair in America (in New York, on August 6, 1890.) Moran’s account includes the precious detail that Kemmler, who chopped his lover to bits with an axe in 1889, told his executioners to “take your time and do it right.”

But it wasn’t Kemmler’s story, per se, that Moran wanted a new generation of budding electric chair aficionados to appreciate. Rather, as the title of his book suggests, it was the intense lobbying and public relations war that took place in the late 1880s between Thomas Alva Edison, who lit up the world with direct current (DC), and George Westinghouse, who did likewise with alternating current (AC). The war between these two giants of electricity gave America the electric chair. The two fought over the safety and reliability of their respective currents and it was Edison himself, in his zeal to protect his precious DC from its fading market share, who convinced New York lawmakers in an epic hearing to sanction an electric execution of a human being. That’s how the electric chair came to America. Moran told me this week via email:

The origin of the electric chair has broad implications for our understanding of the relationship of science and technology to social policy and especially to the current debate on capital punishment. Kemmler’s execution is generally regarded as the first modern execution. It was the first to rationalize the process of putting a person to death by employing science and technology in the service of humanity, and it was the first time the press was legally barred from attending an execution and publishing its gruesome details. Once stripped of its symbolic content and instructive purpose, the goal of an execution was merely to kill the condemned as quickly, and painlessly, and efficiently, as possible.

I also turned for historical context to Scott Christianson, who has written extensively about criminal justice, prisons, and the death penalty. What most animated him about the history of the electric chair? For him it was not the obvious pick: the “most famous electric chair execution in American history” which “involved a married couple who didn’t murder anyone,” namely Julius and Ethel Rosenberg, who were killed one after the other at Sing Sing prison in Ossining, New York, on June 19, 1953. As Christianson described it:

Julius was executed first. Two and three-quarters minutes after sitting down, he was declared dead. A few minutes later Ethel appeared in a dark green print dress and she was strapped into the chair in the same way. But her electrocution ended up requiring three successive flips of the switch that one witness said sent a “ghastly plume of smoke rising to the skylight overhead,” until finally she was declared dead after four-and-a-half awful minutes.

For Christianson, the most memorable story was a remarkable night of violence at Sing Sing four years before Tennessee even began its experiment with the electric chair. As Christianson told me this week via email:

The greatest mass electrocution in history occurred at Sing Sing in 1912 when seven convicts were put to death in one night — one black and six Italians, Italians at that time being considered “the criminal class.” Six men ended up going to the electric chair for the same single murder in which only one person had wielded the knife and another had allegedly held the victim. The other four were condemned for felony murder because they had supposedly been party to the related robbery. All six were Italian immigrants who had recently arrived in the United States via Ellis Island.

The prison physician, Dr. Amos Squire, later wrote, “It was a ghastly occasion — I shall never forget it as long as I live. As they waited their turn in the condemned cells, the four who had never seen Mrs. Hall (one of the victims in one of the cases) howled and screamed. All of us in the execution chamber — witnesses and officials — could hear them, as could those of the seven who went first. The shrieking and wailing that day is indescribable. The whole thing was like a nightmare, unreal and yet horrible. I’m sure that all of the witnesses in the room were indeed sorry they were there.”

Finally I turned to Deborah Denno, a law professor at Fordham University, who is a nationally-recognized expert on the death penalty — and especially the means of executions. Unlike Moran or Christianson, Denno is active today in the roiling political and legal debate over the death penalty and lethal injection, and she chose as her momentous story about the electric chair in America the grim story of Leo Jones, a death row inmate in Florida in June 1997. At the time, Florida had just botched the execution of an inmate named Pedro Medina, whose head burst into flames when the state killed him in March 1997 and Jones’ trial judge wanted to evaluate whether the use of the state’s electric chair, also called “Old Sparky,” was “cruel and unusual.”

So the judge ordered a trial run with a metal bowl taking the place of a human head. As an expert, Denno was invited by state corrections officials to witness this “practice” execution so she could report on its results. But she wasn’t the only witness. Jones, the death row inmate who was scheduled next for execution in Florida, was ordered by a trial judge to attend the experiment — to witness, in other words, a dry run for his own death. “He sat in the middle,” Denno later wrote, “close to the clear panel that separated him, by only several feet, from the instrument of his death.” The first jolt on the bowl was not properly recorded — a botched printer was to blame. So Jones had to watch a second jolt. Four months later, the Florida Supreme Court sanctioned the continued use of this chair. And five months after that Jones was dead, one of 44 killed via Florida’s own version of “Old Sparky” following the resumption of capital punishment in the state in 1979.

“A Little Bit Gruesome”
In Utah, which recently brought back the firing squad, the protocol calls for a blindfold, sandbags, and four loaded rifles.
Other methods: Nitrogen Gas Electric Chair

I n March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state. Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs. Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad. It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.

Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming. Idaho maintained the method as an option until 2009. It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair. The firing squad has consistently been found to be more reliable than many of the alternatives. Botches — in the form of bullets that miss the heart — have been rare. In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns. His heart stopped 15.6 seconds after the bullets hit. Lethal injection, at its fastest, takes minutes.

The objections are not logistical; they are cultural. Despite evidence that firing squads meet all the criteria for a successful execution, efforts to expand their use continue to face a vague uneasiness. The primary argument against the method has been that it is too much of a spectacle — it creates a media frenzy, gives the condemned an air of martyrdom, and feels like an unseemly step backward in history. Lawmakers opposed to the method have used words like “medieval,” “archaic,” and “barbaric,” while coverage by the Associated Press — published in newspapers around the country — makes prominent reference to the “Old West.”

If any other state decides to employ a firing squad, Utah will be the go-to source of expertise; it is the only state that has actually utilized the punishment in the last 100 years8.

last 100 years8The only other state to carry out a firing squad execution in the 20th century was Nevada, in 1913. At the time, prison officials had trouble finding men to shoot the guns.

The story of Utah’s adoption of the firing squad and recent ambivalence about it is closely tied to the story of Mormonism. Joseph Smith, Jr., the founder of the Church of Jesus Christ of Latter Day Saints, promoted a literal understanding of the Book of Genesis requirement that “whosoever sheddeth blood, by man shall his blood be shed.” Smith told his followers that for people who had committed murder, theft, and adultery, “the blood of Christ will not cleanse them from their sins even though they repent,” according to Joseph Fielding Smith, who presided over the church in the early 1970s. “Their only hope is to have their own blood shed.”

Following this doctrine — which came to be called “blood atonement” — Utah’s first governor, Brigham Young, offered murderers a choice between shooting, hanging, and beheading beginning in 1862 (the last of these was never chosen and was dropped from the law in 1888).

The practice of offering a choice continued even as the state adopted lethal injection. Since the 1960s, three9 of the seven men executed in the state have picked the firing squad. There are currently eight inmates on the state’s death row, three of whom have opted to be shot. The Mormon church has since disclaimed “blood atonement” and does not take a position on capital punishment, but as with polygamy, the church has not been able to escape its past cleanly. According to the Salt Lake Tribune, as recently as 2008 lawyers were asking potential jurors in death penalty cases about their views on “blood atonement” as a means of discovering whether they could impose a death sentence.

three9Gary Gilmore in 1977, John Albert Taylor in 1996 and Ronnie Lee Gardner in 2010.

In 1996, the state began to consider abandoning the firing squad. State Representative Sheryl Allen, who pushed the ban, told a reporter, "A couple of people in prominent positions said to me, 'We've got to have blood atonement.'” One of the fiercest opponents of giving up firing squads was death row inmate Ronnie Lee Gardner, who cited his “Mormon heritage” and accused Utah officials of trying to polish the state’s image ahead of the 2002 Winter Olympics. That allegation has never been corroborated, though the effect of bad publicity on tourism has been a recurring theme in Utah’s debate about the firing squad. It is a theme one can easily imagine playing out in other states.

Representative Allen continued to push for a ban with an argument that had little to do with Mormonism — and would almost certainly be repeated in other states. The firing squad, she said, is too much of a spectacle, detracting attention from the victim and the crime and allowing prisoners “one last magnificent manipulation of the system to bring attention to themselves.”

Allen prevailed and the state voted to abandon the firing squad in 2004. Ronnie Gardner, however, was granted his wish. His execution, in 2010, featured all of the macabre fanfare Allen had warned about: 150 reporters, including many from Europe and Australia, flocked to the tiny town of Draper, Utah where the execution took place. The British newspaper The Guardian described how Gardner had “his heart ripped to pieces by bullets blasted from the rifles of five expert marksmen hidden behind a brick wall” and noted that Utah “has long prided itself on its passionate embrace of the gun.” Adding to the sense of ritual, the state corrections department issued commemorative coins to the officers involved in the execution.

Around the time Gardner faced the guns, lethal injection drugs were growing difficult to obtain throughout the country. Responding to that crisis — and perhaps because Gardner’s execution, for all the negative attention it garnered, went off without any serious problems — the Utah Legislature began to consider resuscitating the firing squad as an official means of execution in the event drugs can’t be found.

In his March statement on the firing squad revival, Utah’s governor made no mention of Mormon doctrine, but the connection continues to float around. One of the Utah death row prisoners who had chosen firing squad before the 2004 law change is Ron Lafferty, who killed his sister-in-law and her baby daughter in 1984 after the former opposed his fervent devotion to polygamy. Some feel that allowing Lafferty to go by firing squad will add to his air of martyrdom. Other fundamentalist Mormon splinter sects have been known to support blood atonement. Before his arrest in 2006, Warren Jeffs, head of the Fundamentalist Church of Jesus Christ of Latter-Day Saints was rumored to be building a chamber for shooting criminals at his group’s ranch in Texas.

As lethal injection drugs get harder to find and more states consider the firing squad, the debates in those states will have little to do with Mormonism, but they will certainly involve references to the more violent periods that defined our country’s past and force politicians to deal with the notion that this is a step backwards. “This isn’t an attempt to time-warp back into the 1850s or the wild, wild West or anything like that,” state Rep. Rick Brattin, who proposed bringing the firing squad to Missouri, told the Associated Press.

And yet, the efficiency of the firing squad continues to attract proponents. “I tried to put myself in the position of someone who was going to be executed,” Wyoming10 State Senator Bruce Burns told the Wall Street Journal. “That was actually the way I would prefer to go.” Even opponents of the death penalty can be found defending the method. “Shooting someone to death is more humane than execution by drugs,” Boston College law professor and former defense attorney Kari Hong recently opined in the Boston Globe, citing a vivid rhetorical question, asked in an essay by federal judge Alex Kozinski: “We mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn’t death by firing squad, with mutilation and bloodshed, more honest?”

Wyoming10In Wyoming the debate is largely theoretical: the state last carried out an execution in 1992 and currently has no prisoners on its death row.