On Thursday, September 26th, Alan Eugene Miller was put to death in Alabama by nitrogen gas asphyxiation. Nitrogen is a physiologically inert gas, meaning that it has no toxic or anesthetic properties. When inhaled, nitrogen dilutes the concentration of oxygen in the blood to dangerously low levels. This deprives cells in the body of oxygen, which ultimately leads to unconsciousness and death. Nitrogen gas asphyxiation, which involves inhaling pure nitrogen gas through a respirator mask, was recently authorized as a method of capital punishment by Alabama in 2018 due to a shortage of lethal injection drugs. Miller is the second person ever to have been executed by nitrogen gas asphyxiation; this method was used for the first time in the world when Alabama executed Kenneth Eugene Smith in January of this year.
Nitrogen gas asphyxiation was intended to be a more humane or painless alternative to other forms of capital punishment such as lethal injection, but eyewitness accounts of Miller and Smith’s executions have cast doubt over this theory. During the executions of both Miller and Smith, they thrashed and convulsed violently on the gurney for the first several minutes of the execution and spent several additional minutes gasping for air before they finally stopped breathing. It took approximately 22 minutes for Smith to stop breathing after he began to inhale the nitrogen gas, and witnesses were reportedly “alarmed” by the ordeal. A reporter for the Associated Press who had been present for most executions in Alabama stated Smith’s reaction to the nitrogen gas asphyxiation was “not typical for what you see in a normal execution.”
The recent implementation of nitrogen gas asphyxiation as a novel form of capital punishment has raised serious questions regarding cruel and unusual punishment and medical ethics. Prior to his execution, Smith’s legal team filed a brief in the U.S. District Court for the Middle District of Alabama Northern Division in an attempt to halt the execution using nitrogen gas, stating that this method would put him at severe risk of a persistent vegetative state, stroke, the painful sensation of suffocation, superadded pain, or other permanent injuries in violation of the Eighth Amendment should the execution end in failure. Following the execution of Smith, the use of nitrogen gas asphyxiation as a form of capital punishment was also condemned by the UN High Commissioner for Human Rights Volker Türk, citing “serious concerns this novel and untested method of suffocation by nitrogen gas may amount to torture, or cruel, inhuman or degrading treatment.”
Additionally, Smith’s lawyers argued in their brief that certain procedures should be implemented to decrease the risk of failed nitrogen gas asphyxiation, such as having a medical provider present during the execution. However, the American Medical Association’s Code of Medical Ethics forbids physicians from participating in a legally authorized execution. Considering the alarming reaction exhibited during both Smith and Miller’s executions, it is concerning that improving the efficacy of nitrogen gas asphyxiation and reducing the risk of complications or superadded pain (and therefore mitigating potential violations of the Eighth Amendment) by having a physician present would be a direct violation of the code of ethics that physicians in the United States are required to follow. At this time, it is likely that this method of execution will continue to be used in Alabama as over 40 other death row inmates have selected nitrogen gas asphyxiation as their method of execution, and several other states have also authorized lethal gas as an execution method. Further investigation into Miller and Smith’s executions is necessary to shed light on whether this method complies with current medical ethics, human rights, and the Eighth Amendment.