Could Alabama have an execution using nitrogen gas in 2023?

The question in the title of this post is prompted by this new AP piece headlined “Alabama ‘close’ to finishing nitrogen execution protocol.”  Here are the basics:

The head of Alabama’s prison system said Wednesday that a protocol for using nitrogen gas to carry out executions should be finished this year. “We’re close. We’re close,” Alabama Commissioner John Hamm said of the new execution method that the state has been working to develop for several years.

He said the protocol “should be” finished by the end of the year. Hamm made the comment in response to a question from The Associated Press about the status of the new execution method. Once the protocol is finished, there would be litigation over the untested execution method before the state attempts to use it.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. Alabama, Oklahoma and Mississippi have authorized the use of nitrogen hypoxia, but it has never been used to carry out a death sentence.

Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method. Supporters said the state needed a new method as lethal injection drugs became difficult to obtain. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge in 2021 that it had completed a “system” to use nitrogen gas but did not describe it.

Although lethal injection remains the primary method for carrying out death sentences, the legislation gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. Hamm also said a review of the state’s execution procedures should be completed, “probably within the next month.”

As the article highlights, inevitable litigation over a novel execution method likely means the sensible answer to the question in the title of this post is “Quite probably no.” But, given the long-standing debates over execution methods, it is still interesting to see Alabama claim it is getting closer to pioneering a new method.