Alabama Conducts Its Longest Nitrogen Execution Yet

Before we begin: I’m not the guy you should see for legal analysis, but I’d be remiss not to mention Anthony Boyd’s compelling innocence case, reported by Lauren Gill at Bolts, or his chairmanship of Project Hope to Abolish the Death Penalty, a death-row-run advocacy organization whose work I have relied on extensively in other contexts.

Last week Alabama tortured Anthony Boyd to death.

According to Lee Hedgepeth, a local journalist and frequent Alabama execution witness, pure nitrogen began to flow into Boyd’s positive-pressure mask at roughly 5:55. Per the original report proposing the nitrogen hypoxia method, Boyd should have lost consciousness “in eight to ten seconds,” with his brain going isoelectric (no detectable electrical activity) “a few seconds later.“ Instead, according to Hedgepeth:

Boyd’s execution marks the surest sign yet that the latest innovation in killing already subdued human beings isn’t the great white hope Alabama and several other states made it out to be. What’s equally clear—and perhaps darker—is that it doesn’t appear as though it’ll matter.

Execution by Nitrogen Hypoxia is Built on Scientific Malpractice

When Oklahoma first speculated about nitrogen in response to the disastrous execution of Clayton Lockett, it commissioned a three-person report to study the method. Two were professors in law, the other teaching human resources; none had any medical or scientific background, and it showed. The authors based their contention that nitrogen executions would be painless on non-medical reports from industrial accidents, suicides, and a single, then-50-year-old study about fighter pilots’ experience in a briefly oxygen-deficient environment. While that study didn’t report any discomfort, the authors didn’t note that it didn’t measure for subjective experience at all, and that researchers revived any subject exhibiting signs of long-term harm.

A later, more scientific review of the Copeland Report poked multiple holes in this logic. Biochemists David C. Poole and Damian Bailey pointed out that while nitrogen can displace the oxygen in a person’s lungs, that doesn’t immediately render the body anoxic; the average person has enough oxygen to sustain vital functions for five to six minutes. Moreover, breathing isn’t the only means the body can use to regulate oxygen distribution; oxygen receptors in the arteties can respond to hypoxia by triggering a catecholamine surge, which spikes circulation of the remaining oxygen in the blood via pulse or blood pressure increases while simultaneously, and crucially, raising alertness. Poole and Bailey speculated that nitrogen would have given Kenneth Smith, Alabama’s first test subject, roughly one minute of “intolerable air hunger,“ described as a “primal sensation“ of “anxiety, frustration and fear.“ They also note that this timeline would depend greatly on Smith’s lung volume and breathing pattern.

Even this grim picture, however, doesn’t account for witness descriptions. Hedgepeth counted more than 200 breaths, with variable pace and depth. After a full 20 minutes of writhing and labored breathing (much longer than the five to six minutes the biochemists estimated it would take), Hedgepeth noted that Boyd began reducing the depth of his breathing but increasing its pace; while it’s impossible to know for certain what triggered the change, it’s consistent with patterns the body adopts to combat hypercarbia (too much carbon dioxide in the system), known to cause extreme pain and discomfort.

The Truth the Supreme Court Majority Doesn’t Seem to Care If You Know

None of the above seems to matter to the highest court in the land; SCOTUS denied Boyd’s application for a stay 6–3, along party-of-nominator lines. Justice Sotomayor, the current Court’s harshest critic on multiple fronts of death penalty jurisprudence, wrote a dissent joined by the other two Democratic appointees:

Sotomayor’s word choice here is pointed: four of the six-Justice majority denying Boyd’s stay had also done so in Bucklew v. Precythe, which introduced the requirement that execution methods “superadd terror, pain or disgrace.” (Thomas joined in part but argued in a concurrence that only intentionally cruel and unusual execution methods are unconstitutional.) As with Alabama’s previous nitrogen executions, that majority exercised its prerogative not to justify its decision.

Meanwhile, as Alabama sings the usual praises of its new toy, it’s already gearing up to put more men to death next year—whether by nitrogen or the original failed execution experiment, lethal injection. As Sotomayor notes elsewhere in her dissent, “the experiment continues.“

Photo credit: Project Hope to Abolish the Death Penalty