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Tuesday, February 27, 2024

Louisiana lawmaker’s bill would allow nitrogen gas executions

A Louisiana lawmaker is proposing a bill that would allow for nitrogen gas to be used in executions in the event lethal injection is unavailable, making it the latest state to consider adopting the practice after Alabama put a man to death last month through the first-of-its-kind method.

Rep. Nicholas Muscarello, a Republican who chairs the House’s Civil Law and Procedure Committee, said Friday that he drafted the bill primarily as a way to ensure the identities of individuals and companies that help to administer the death penalty in the state remain confidential. In recent years, manufacturers and suppliers known to have their drugs used in lethal injections have declined participation, which has made the process increasingly difficult in states such as Louisiana.

Muscarello said he still believes lethal injection can be used the vast majority of the time, but the state should have other options.

“The state of Louisiana will do everything within its power to make sure this process is done efficiently and humanely and we will not cut any corners in order to make sure we are doing this the right way,” he said. “But at the end of the day, we made a commitment to the families of victims with the verdicts that were reached, and we need to proceed forward.” 

He added that he would help in the design of a nitrogen hypoxia protocol in conjunction with the governor’s office “to make sure it’s done correctly and above board.”

The bill, which was prefiled Thursday, is expected to be discussed in a special legislative session focusing on the state’s criminal justice system beginning Feb. 19. If passed, it would give the state Department of Public Safety and Corrections the “discretion” to select a process of either lethal injection, electrocution or nitrogen hypoxia, in which a person breathes only nitrogen and dies from a lack of oxygen.

About 60 people are on death row in Louisiana, but the state has not put anyone to death since 2010, last using lethal injection. The method has stalled with the shortage of the necessary drugs and litigation challenging the state’s lethal injection protocol.

Anti-death penalty activists place signs along the road heading to Holman Correctional Facility in Atmore, Ala., ahead of the execution of Kenneth Eugene Smith on Jan. 25, 2024.
Anti-death penalty activists place signs along the road heading to Holman Correctional Facility in Atmore, Ala., ahead of the execution of Kenneth Eugene Smith on Jan. 25, 2024. Kim Chandler / AP

Electrocution had been the sole method of execution in the 1980s, but was no longer viable after the electric chair at the Louisiana State Penitentiary at Angola was retired in 1990.

Muscarello’s bill includes penalties for anyone who dicloses the names of people, businesses and organizations involved in the execution process, similar to a shield law in South Carolina.

Anyone who violates the law in Louisiana “shall be imprisoned for not more than two years and fined not more than $50,000,” and could also face civil action, according to the bill.

“We don’t want to reinvent the wheel, and we want to follow the other Southern states,” Muscarello said.

The office of Gov. Jeff Landry did not immediately respond to a request for comment, but the first-term Republican, who campaigned on being tough on crime, has been vocal about finding alternate methods in order to restart executions. When he served as state attorney general, he publicly supported the use of death by firing squad, hanging or electrocution.

“States around us are finding ways and methods in order to execute those that have been tried and convicted and sentenced to death,” Landry told reporters last week.

He added that he and the state Legislature, which is controlled by Republicans, “are going to fulfill our commitments.”

“Families deserve their day of justice,” Landry said.

The governor did not specifically mention Alabama, but the state drew attention for administering the first execution using nitrogen hypoxia in January. Alabama Attorney General Steve Marshall hailed the outcome as “textbook” and said his state would continue to use nitrogen gas, despite concerns by human rights and religious groups around the world. According to witnesses, the inmate who was put to death did not become unconscious as quickly as expected and thrashed on the gurney.

“Rather than inventing new ways to implement capital punishment, we urge all states to put in place a moratorium on its use, as a step towards universal abolition,” Ravina Shamdasani, a spokesperson for the U.N. Human Rights Office, said last month.

Kenneth Eugene Smith, who was 58 and on Alabama’s death row for over three decades for a 1988 murder-for-hire slaying, had been strapped down and fed nitrogen gas through a mask attached to his face. The execution lasted about 20 minutes.

Smith’s lawyers had tried to block the practice, arguing the use of an untested method only heightened concerns over cruel and unusual punishment amid fears he might vomit into the mask and choke or suffer a seizure. Alabama’s nitrogen hypoxia protocol also drew scrutiny over how heavily redacted the document has been in public filings.

The state had said in court filings that “the experts agree that nitrogen hypoxia is painless because it causes unconsciousness in seconds” and death within minutes. But media witnesses in Smith’s execution said it appeared to take longer than the state had suggested for him to become unconscious and die.

Nonetheless, Marshall has offered to help other states that want to develop nitrogen hypoxia protocols.

King Alexander, president of the Louisiana Association of Criminal Defense Lawyers, said criminal justice practices that allow the state to routinely hold the highest incarceration rate in the nation isn’t helping the economy or instilling confidence in elected officials.

“Like many of my fellow Republicans, one of my core goals for our great state is seeing companies and investors build new projects that create opportunities for individuals and economic growth for everyone. For that to happen, Louisiana must look to the future, not the past,” Alexander said. “Some lawmakers propose we jump start and expand the death penalty by returning to outdated methods like gassing our citizens and the electric chair, and allowing for expanded and troubling new levels of state secrecy. We know these potential measures can only move our state backwards.”

But Louisiana is not alone. Republican lawmakers in Ohio introduced a bill last week to make nitrogen hypoxia an alternative to lethal injection and require a nitrogen execution if lethal injection drugs are not available. Ohio has not put an inmate to death since 2018, and attempts to do so have been delayed over the inability to procure the right drugs. Still, four executions are slated for this year in the state.

Two states, Mississippi and Oklahoma, have approved nitrogen hypoxia in executions in addition to other methods, although neither has a protocol in place like Alabama.

At the start of the year, even before Alabama carried out its nitrogen execution, a Nebraska lawmaker introduced a bill to make nitrogen hypoxia another option for death row inmates besides lethal injection. Like Ohio, Nebraska has been unable to carry out an execution since 2018.

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