Shortly after Alabama last week carried out its second-ever execution using nitrogen gas, state officials took credit for pioneering what they see as a breakthrough approach to the death penalty – even though it has sparked outrage and revulsion among critics.
But the idea to execute inmates in the US with nitrogen was actually set in motion by a rebellious and ultra-conservative lawmaker in Oklahoma, and surprisingly involves a former British Conservative MP turned television personality, Michael Portillo.
Both promised such executions would be free of the complications that had plagued lethal injections and that sentenced prisoners would drift off painlessly to sleep – though witnesses to both executions have described a very different process.
Nitrogen executions were first legislated in 2015 by Oklahoma, a US state boasts the highest execution rate per capita and a long history of death penalty innovation, having also been the first to introduce the lethal injection in 1977.
The story of its most recent innovation in execution methods involves a documentary hosted by Portillo. After a career in British politics, where he was once seen as a darling of the Conservative right, Portillo reinvented himself as a television presenter. He later became famous for shows on the BBC such as Great British Railway Journeys.
But in a bizarre collision of worlds, it was his film How to Kill a Human Being, broadcast by the BBC in 2008, that helped persuade the Republican representative Mike Christian and a high-school friend of his to pursue a bill writing nitrogen executions into law. So convinced were they by Portillo’s film and findings that they screened it at the Oklahoma capitol in September 2014.
“I remember it being quite disturbing,” said Emily Virgin, a Democratic representative present at the time who voted against the nitrogen bill Christian later authored. In 2015, it passed 85 to 10 in the Oklahoma house and unanimously in the Senate.
The bill had been a while in the making. By 2014, states across the country were struggling to enforce capital punishment. Anti-death penalty advocates had successfully lobbied drug companies to stop supplying them with lethal injection drugs and many states were forced to improvise. Some attempted to get their drugs via illegal backchannels while others sought out substitute compounds, but both contributed to a string of botched and messy executions.
In April 2014, things came to a head. Oklahoma’s supreme court issued a stay on the execution of death-row inmate Clayton Lockett over issues of secrecy around its lethal injection drugs. Incensed by the move, Christian, who was also a former state trooper, drafted a resolution to impeach the five justices who had supported the stay and was quoted in newspapers around the country for saying of Lockett’s execution: “I realize this may sound harsh but as a father and former lawman, I really don’t care if it’s by lethal injection, by the electric chair, firing squad, hanging, guillotine or being fed to the lions.”
The stay was soon overturned by Oklahoma’s governor, and Lockett’s execution went ahead. The executioners tried for almost an hour to establish an intravenous line before inadvertently injecting the drugs into the tissue around his groin. Witnesses saw him writhing in a pool of blood and according to an inquiry by the Oklahoma department of public safety the execution took 41 minutes, during which his heart rate dropped to six beats per minute.
Months later, Christian was back with another plan. He had gathered more than a dozen or so Oklahoma legislators and public officials for a judiciary committee meeting at the Oklahoma capitol to make the case for something new.
“We knew there was a problem after the Lockett execution,” he said, according to a recording of the meeting. “In 1977 we became the first state to adopt lethal injection. My wishes are in 2015 we abolish, possibly, lethal injection and we go to this new innovative method, which is death by nitrogen hypoxia.” Then, on a television in the meeting room, he screened Portillo’s BBC documentary.
At the start of the 50-minute film, Portillo sets out to discover the “perfect killing device” for carrying out humane executions. After touring labs and meeting with experts across the US and Europe, he finds that all the methods known to the west – including the firing squad, electric chair, cyanide chamber, and hanging – are flawed. But, he concludes: “I think hypoxia is the solution.”
The term hypoxia simply describes when the body’s cells receive insufficient oxygen to function and can be induced in many ways. In the film, Portillo attempts to experience hypoxia at a Dutch air force training facility, where he sits in an altitude chamber that simulates oxygen-thin air. Satisfied that the experience was painless, he seeks out a more practical way to starve somebody of oxygen and meets a veterinarian who tells him that if a human were forced to breathe just pure nitrogen they would lose consciousness “within 15 seconds” and die “within a minute”.
“It turns out a canister of gas, a tube and a mask can be the perfect killing machine. It’s as simple as that,” says Portillo.
On the day his film was screened for Oklahoma officials in 2014, some six years after it first aired in 2008, Christian brought along with him a part-time professor of political science at Oklahoma’s East Central University, Michael Copeland, who was also a high-school friend and had been involved in his election campaign.
“People that aren’t familiar with the legislative process might think that state governments like Oklahoma have a bunch of experts on their payroll to advise them, but that’s not really what happens. Members can go out and they dispatch people that work at colleges,” said Copeland when asked about his involvement.
He and some peers at the university produced a 14-page research paper which found that the use of nitrogen would not require the participation of a “licensed medical professional”, nor the “cooperation of the offender being executed”.
“It’s such a simple procedure, it would be hard to do it wrong,” said Copeland when asked about the specifics of a nitrogen execution. “You won’t find one person who is for the death penalty in general but thinks that this method is somehow complicated, or you won’t be able to implement it correctly.”
Another person present at the meeting was David Cincotta, legal counsel to the Oklahoma department of corrections at the time. “The details provided in the research that had been done were not close to what would be required to defend the method in court,” he said when asked about the material presented.
Christian was part of a highly conservative rebel faction of Republicans in Oklahoma who were further to the right than the mainstream Republicans, according to Virgin. One of his friends in that group was Senator Randy Terrill, who in 2013 was sentenced to a year in prison for bribing a Democratic candidate to withdraw from a Senate election so that Christian could have her otherwise unwinnable seat. Their mutual friend Copeland testified in support of Terrill during his trial.
Before that, the group pursued a controversial bill calling for the installation of a monument of the Ten Commandments outside the Oklahoma capitol. And when Christian ran in 2017 for the Oklahoma county sheriff’s office, documents emerged indicating that in 1999 he was reprimanded for toasting to the death of a judge who had ruled against a lawsuit seeking to have the Confederate flag returned to the state capitol. The group that brought the suit was an Oklahoma division of the Sons of Confederate Veterans.
When asked why Oklahoma passed its nitrogen bill in 2015 but never followed through on developing and finalizing a protocol, Copeland said: “Nobody wants to be the first. You don’t want to be the one who gets blamed if something goes wrong.”
But just a few states over in Alabama, Republican senator Trip Pittman caught wind of the Oklahoma bill and figured nitrogen might cure the execution woes they were facing in his own state, so he authored his own. “Misery loves company,” he said. “Oklahoma had passed the bill and they had done the research.”
Fortunately for Pittman, a dogged attorney in the Alabama attorney general’s office by the name of Lauren Simpson was ready to step up, and wasn’t scared to do the legal work necessary to get nitrogen executions over the line. But she didn’t come out unscathed. In a rare and humiliating move, in 2021 she was fined for misleading the courts over whether Alabama’s death row inmates were properly briefed on how and when they could choose between lethal injection and nitrogen. Simpson declined to comment on her involvement, citing a lack of permission from her office.
The Alabama protocol she had a hand in developing sees a firefighter-style gas mask attached to the prisoner’s face, which is then filled with a stream of pure nitrogen, thus depriving them of oxygen and causing them to die.
The smoothness of Alabama’s two nitrogen-gas executions has been widely disputed by their few witnesses. While the state has claimed they were “textbook,” others have described them as more violent than some botched lethal injections.
“Despite misinformation campaigns by political activists, out-of-state lawyers, and biased media, the State proved once again that nitrogen hypoxia is both humane and effective,” said Alabama’s attorney general Steve Marshall, minutes after the second execution last week.
Yet in both nitrogen executions almost all witnesses spoke of jerking against restraints and gasps for air over several minutes. A prison official involved in the first execution, carried out in January, later acknowledged in a sworn statement that it took “longer than I had expected.”
In a statement to the Guardian, Copeland disputed that Alabama’s executions had gone wrong, saying: “There was some movement during the procedure, which could be interpreted as either conscious struggling or the involuntary movements typically exhibited by people who are dying.”
“The death penalty is never going to be something pleasant,” he said. “Nobody wants to die.”
Source: US Politics - theguardian.com
