Will other states move to nitrogen after Alabama’s pioneering success with new execution method?

The question in the title of this post is was my first question in the wake of last night’s newa that Alabama carried out an historic first execution using nitrogen gas.  This New York Times article provides this account of the execution and what it could mean:

Alabama carried out the first American execution using nitrogen gas on Thursday evening, killing a convicted murderer whose jury had voted to spare his life and opening a new frontier in how states execute death row prisoners.

The execution of the condemned prisoner, Kenneth Smith, 58, began at 7:53 p.m. Central time, and he was pronounced dead at 8:25 p.m. in an execution chamber in Atmore, Ala., according to John Q. Hamm, the state prison system’s commissioner.  The U.S. Supreme Court allowed the execution to move forward over the objections of its three liberal justices and concerns from death penalty opponents that the untested method could cause Mr. Smith to suffer.

Mr. Smith, who was strapped to a gurney with a mask placed on his head, appeared conscious for several minutes after the nitrogen gas started flowing into the mask, depriving him of oxygen, according to a pool report from five Alabama journalists who witnessed the execution.  State lawyers had previously claimed in court filings that an execution by nitrogen would ensure “unconsciousness in seconds.”  He then “shook and writhed” for at least two minutes before beginning to breathe heavily for several minutes.  Eventually, the journalists said, his breathing slowed until it was no longer apparent.

Mr. Hamm said it looked like Mr. Smith had tried to hold his breath as long as he could, and he downplayed Mr. Smith’s body movements, saying “nothing was out of the ordinary from what we were expecting.”…

Lee Hedgepeth, a reporter in Alabama who witnessed the execution, said Mr. Smith’s head moved back and forth violently in the minutes after the execution began. “This was the fifth execution that I’ve witnessed in Alabama, and I have never seen such a violent reaction to an execution,” Mr. Hedgepeth said.

Mr. Smith was one of three men convicted in the 1988 murder of Elizabeth Sennett, whose husband, a pastor, had recruited them to kill her.

It was the second time Alabama had tried to kill Mr. Smith, after a failed lethal injection in November 2022 in which executioners could not find a suitable vein before his death warrant expired.  Mr. Smith’s lawyers and the state’s attorney general, Steve Marshall, said Thursday’s execution was the first that had been carried out by nitrogen anywhere in the world.

Other states have looked to Alabama’s experience as they face mounting problems obtaining lethal injection drugs because of pressure from medical groups, activists and lawyers.  Mississippi and Oklahoma have authorized their prisons to carry out executions by nitrogen hypoxia, as the method is known, if they cannot use lethal injection, though they have never tried to do so. “Our proven method offers a blueprint for other states and a warning to those who would contemplate shedding innocent blood,” Mr. Marshall said, suggesting that the availability of an “efficient” execution method could act as a deterrent to criminals.

The Supreme Court’s order allowing the execution to go forward did not give an explanation, as is often the case when the justices decide on emergency applications.  The court’s three liberal members disagreed with the majority’s decision.

In a strongly worded dissent, Justice Sonia Sotomayor voiced concerns about Alabama’s new method. “Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote. “The world is watching.”

Justice Elena Kagan, a separate dissent joined by Justice Ketanji Brown Jackson, wrote that she would pause the execution to give the court time to examine the “exceptional circumstances” surrounding Alabama’s new method of execution and Mr. Smith’s challenges.

The dissents from Justices Sotomayor and Kagan are available at this link.   In addition to “the world” watching, states have surely been watching this case closely.  That lower courts, and ultimately the Supreme Court, refused to interfere with this novel execution method likely will lead some some state legislators and prison officials to consider more seriously about nitrogen gas as a means of carrying out a death sentence.

At the same time, defendants facing execution by means of lethal injection might just prod states to adopt this new execution method.  In some states, defendants have contested lethal injection execution protocols by arguing that nitrogen gas would provide a more humane means to execute.  After this Alabama execution, such arguments may now be somewhat more forceful and may make some states even more likely to adopt nitrogen gas execution protocols.