A recent ruling from the Alabama Supreme Court brings the state one step closer to implementing the untried execution method of nitrogen hypoxia. Fordham Law Professor Deborah Denno argues that this development raises significant legal and ethical concerns surrounding the state’s approach to capital punishment.
“A new form execution which has never been used before, there are going to be a lot of problems with that because it really is experimentation,” said Deborah Denno, a professor at Fordham Law School who has researched and written about executions. “It’s literal experimentation. Nobody ever, as far as we know, has killed somebody this way, unless that was a murder that we weren’t familiar with. Even though some people say this is a very effective procedure, they wouldn’t know that because literally nobody has ever done it.”
Denno said the redacted protocol leaves out information that the state should disclose.
“For a method that has never been used before they should be spelling out every stage,” Denno said. “In fact, the beginning of this protocol should be an overall description of the purpose for this method of execution, which they’ve never given. They’ve never said why they are using this method of execution. Why are they doing it? What’s the advantage? And they never say that.”
An example of information the state should disclose is how it determined the duration for administering the nitrogen, Denno said.
“They say they’re going to wait five minutes (after an EKG flatline), but why five minutes?” Denno said. “They should be explaining.”
The protocol includes inspections of devices with alarms to monitor oxygen levels in the execution chamber and witness rooms. But Denno and Zivot said the document still falls short of describing safety measures needed because of the dangers of nitrogen gas. They also note there is no explanation of how the mask will fit tightly enough to avoid leaking and whether the inmate is strapped down or otherwise prevented from taking off the mask or loosening it by movement.