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Ohio prosecutors talking up nitrogen gas executions as a way to reboot state’s dormant machinery of death

By Douglas Berman

I flagged in this post a few days ago the dormant state of the death penalty in Ohio.  There has not been an execution in the Buckeye State in over five years even though the state has 122 condemned murderers currently on death row, and 31 of these murderers have exhausted all standard appeals.  The primary reason for this de facto execution moratorium has been the state’s ugly history in carrying out lethal injection executions and extensive litigation surrounding the varying drugs and methods used therein.  That history has prompted Governor Mike DeWine to keep pushing back and pushing back execution dates for death row inmates while suggesting to the Ohio General Assembly that they need to address improving execution methods head on.

This new local article, headlined “Prosecutors want to resume executions using nitrogen hypoxia,” reports that Ohio prosecutors have a new(?) idea for getting the state’s machinery of death up and running again:

It’s been five years since Ohio has executed its death penalty. Gov. Mike DeWine delayed executions due to limited access of the drug used for the lethal injection.  But Ohio prosecutors are looking to resume executions through alternative methods.  “We just want to find a pathway forward for the victims of these crimes,” said Louis Tobin, the executive director of Ohio Prosecuting Attorneys Association.  

Tobin said Ohio needs to continue its using the death penalty to provide proper justice.  He said if there is a shortage of the drug needed for the lethal injection, Ohio can use nitrogen hypoxia.  “Filings by the defense bar and federal death penalty pleadings and in (the) Supreme Court of Ohio pleadings have acknowledged that it would be a painless method of execution,” Tobin said.   The process of nitrogen hypoxia works by removing oxygen and letting a person die by inhaling nitrogen gas….

“Somebody who murders one young child is already facing that possibility without a death penalty,” Tobin said, “and without the additional accountability that it provides, you’re allowing them to kill the second and third child for free. They’re free kills. So the death penalty is what justice demands sometimes. Either we’re going to be a state that prioritizes public safety and prioritizes the victims of crime or we’re not.” 

In response to the Ohio Prosecuting Attorneys Association proposal, the governor’s office said only the Ohio General Assembly can change the methods for applying the death penalty.

As long-time readers know, there has long been discussion of execution by nitrogen gas as an alternative to lethal injections.  This discussion really picked up over the last decade as more and more states struggled with their lethal injection protocols.  And  in 2018, Alabama enacted a statute that formally authorized execution by nitrogen, and at least a few other states have execution protocol laws that would allow using this novel execution method.  But, as of now, no modern execution in the US has been completed using nitrogen gas and any efforts to switch execution methods in Ohio would surely engender significant state and federal litigation.

For a variety of reasons, I expect that Ohio’s death penalty will remain dormant for the rest of Governor DeWine’s time in office.  But, in a couple of years, a number of folks with a track record of support for the death penalty will likely start running to be Ohio’s next Governor and it will be very interesting to see if the state’s dormant death penalty gets any more attention.  In the meantime, folks can read up on nitrogen gas as an execution method via a small sample of prior posts on the topic: