A federal judge last month ordered the Alabama Department of Corrections to provide information about the hypoxia protocol in an ongoing lawsuit filed by a man petitioning the court to have his spiritual advisor present at his execution.
"The ADOC is nearing completion of the initial physical build for the nitrogen hypoxia system and its safety measures. Once the build is completed, a safety expert will make a site visit to evaluate the system and look for any points of concern that need to be addressed," Alabama Attorney General Steve Marshall said in a Tuesday court filing.
ADOC on Wednesday declined to answer a number of questions regarding the "physical build" referenced in court documents, including whether it intends to use a gas chamber or a gas mask to administer an execution method that has yet to be tested on human beings.
"The ADOC’s nitrogen hypoxia execution protocol is still under development, and the physical building modifications to the execution chamber are still in process," the department said in a Wednesday statement. "Due to the fact those two items are not yet in a finalized state and potential security concerns exist, that is all we are able to share at this time."
Alabama passed nitrogen hypoxia legislation in 2018, one of only three states to legalize the method of execution. In theory, a condemned person would inhale pure nitrogen, which would asphyxiate them.
The legislation, which proponents argued offered a more humane method of execution, effectively ended an ongoing lawsuit over lethal injection in Alabama. The legislation provided people incarcerated on death row a short window in 2018 to opt in to the method.
But the new law codified a largely hypothetical method of execution. The method has never been tested on humans, and much of the scientific record on the subject comes from veterinary science or hazard investigations, where humans accidentally died in industrial accidents or similar situations.
In Oklahoma, nitrogen hypoxia executions have technically been legal since 2015, but last year the state said it would revert to lethal injections. In 2019, The Oklahoman reported multiple manufacturers declined to be involved in the execution process, with at least seven companies declining to sell the necessary "gas delivery device."
"The big issue with nitrogen hypoxia is it is experimental," said Robert Dunham, director of the Death Penalty Information Center. "We just have no idea whether it's going to work the way its proponents say it will. If it does, then there may be a viable alternative to lethal injection. If it doesn't, it may be just another method that was advertised as being humane that turns out not to be. It's completely unethical to experimentally kill someone, so we won't know. ... Nobody knows, nobody has indicated how its going to be carried out, though I suspect the death mask is more likely than a gas chamber. There was never any indication that Oklahoma intended to construct a gas chamber."
Multiple pharmaceutical companies have blocked purchases of lethal injection drugs in recent years amid growing opposition to the death penalty, leading some states to revert to alternate methods.
New legislation in South Carolina resurrected the firing squad, though the state hasn't killed a prisoner in a decade, according the NPR.
A Guardian investigation found Arizona recently purchased materials to kill condemned prisoners with cyanide gas, the same method used at the Auschwitz concentration camp during World War II.
Arizona has "refurbished" an old gas chamber for the executions. Like Alabama, Arizona prisoners can choose between lethal injection or the gas chamber, though executions have been halted in the state for nearly a decade after a botched injection attempt.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
