The Ohio House introduced a new bill on Jan. 30 that could allow nitrogen hypoxia executions. Credit: Andrew Tobias (via TNS)
A new bill was introduced Jan. 30 in the Ohio House that may allow nitrogen hypoxia executions, a method that was used Jan. 25 in Alabama on Kenneth Smith.
The bill has been backed by Ohio Attorney General Dave Yost.
Ohio has not performed an execution since July 18, 2018, largely because the state cannot find anyone willing to produce the chemicals needed for lethal injections, according to the primary sponsor of the bill, Ohio Rep. Brian Stewart (R-Ashville).
“Until the capital punishment would be abolished, if that could happen, we need to follow the law and carry out the sentence as these juries have returned,” Stewart said. “And instead, for five years, we’ve had a de facto moratorium because the executive branch says that they cannot get drugs used for lethal injection.”
Smith’s execution was the first time in the U.S. that nitrogen gas has been used to induce nitrogen hypoxia, which is when someone breathes in only nitrogen, resulting in unconsciousness and then death from lack of oxygen, according to the New York Times.
The U.N. Human Rights Office called on Alabama to halt the execution, saying it could amount to torture and violate human rights commitments made by the U.S., according to Reuters.
“This method is completely experimental, largely untested,” Allison Cohen, executive director of Ohioans to Stop Executions, a coalition that works to end capital punishment in Ohio, said. “We’ve done this exactly once. The reports from it sounded like it didn’t go very well. Or at least it didn’t go as it was expected to, which is super concerning.”
The execution took about 22 minutes, according to the Associated Press. Smith appeared to remain conscious for several minutes and appeared to shake and writhe on the gurney, occasionally pulling against his restraints.
Witnesses said they had never seen such a violent reaction to an execution, according to the New York Times, though many supporters argued this method would be “quick and painless.”
“Whatever method is being used here is far more humane than the methods that these killers have used on their victims,” Stewart said.
Stewart said the bill will outline a choice for inmates between lethal injection, if available, and nitrogen hypoxia.
Douglas Berman, Newton D. Baker-Baker & Hostetler Chair in Law at the Moritz College of Law, said there will be potential legal and administrative challenges that may complicate the course of the bill and its implementation. From the Department of Corrections’ rulemaking process to questions surrounding the choice of execution method for inmates, along with court hearings, there may be a long way to go.
“That’s why doing this, in a sense, by the book is necessarily a multiplayer, and quite possibly, multi-year reality,” Berman said.
Berman said Alabama’s execution established a precedent that emboldens other states, like Ohio, to go through the long administrative and legal process.
Ohio Senate Minority Leader Nickie Antonio (D-Lakewood), primary sponsor of Senate Bill 101, which would abolish the death penalty, said death row is costly for the state to uphold.
“It’s expensive to keep someone on death row,” Antonio said. “It’s expensive to go through the myriad of appeals that someone goes through when they’re on death row. And frankly, I’ve talked to families of victims who say every time an appeal process comes up, they are victimized again having to go through that.”
According to a 2022 Capital Crimes report published by Yost, it is estimated that the cost of imposing the death penalty might range between $128 million to $384 million. There are currently 118 people on death row in Ohio, according to the Ohio Department of Rehabilitation and Correction.
Antonio said the new nitrogen gas bill is a “distraction” from other types of criminal justice reform.
Resuming executions in Ohio does justice for victims’ families, Stewart said.
“They have been waiting in some cases 10, 20, 30 years for a jury verdict and a sentence to be carried out,” Stewart said. “That’s a long time to be left in limbo. That’s a long time to have this hanging over their head.”
Abriana Malfatti, a fourth-year in criminal justice and political science and president of the Ohio State chapter of the Ohio Innocence Project, said for every five executions in Ohio, there is one exoneration. The Ohio Innocence Project, an organization that promotes awareness of wrongful convictions and helps to exonerate individuals, cited this statistic to the Ohio Capital Journal.
The goal of the new nitrogen hypoxia bill is to allow existing laws to function, according to Stewart.
“My goal is just about how do we let a law that we’ve already passed, the system we’ve already utilized, actually function,” Stewart said. “If people want to talk about eliminating the death penalty, there’s multiple vehicles for that.”
The nitrogen hypoxia bill is in its early stages and has not received a bill number yet, according to Stewart.
Antonio’s bill, Senate Bill 101, is receiving hearings in the Ohio Senate Judiciary Committee, Antonio said. A companion bill, House Bill 259, has been introduced in the Ohio House.
