Nebraska would become the fourth state where condemned prisoners could be suffocated to death by forcing them to breathe pure nitrogen gas under a bill introduced at the Legislature on Thursday.
Sen. Loren Lippincott’s proposal (LB970) would require the Nebraska Department of Correctional Services to develop a protocol for nitrogen hypoxia in addition to the existing method of lethal injection, which was last used in 2018.
While nitrogen hypoxia has never been used as a means of carrying out the death penalty in the U.S., and despite recent warnings from the United Nations' watchdog for human rights, Lippincott said he believes it would be effective.
“That is a very humane way of putting a person to death,” the Central City lawmaker said in a phone interview.
According to the Death Penalty Information Center, three states — Alabama, Oklahoma and Mississippi — have all authorized using nitrogen gas to execute prisoners, largely because obtaining drugs for lethal injections has become increasingly difficult.
Only Alabama has developed a protocol for actually carrying out executions using the method, however, and plans to be the first to do so later this month.
In those states where nitrogen hypoxia is available, inmates are given the choice between that method and other procedures on the books, but under Lippincott’s proposal the method for executing death row inmates would be made by the state.
“We would leave that choice up to the leadership of the prison,” said Lippincott, who has 17 co-sponsors for his bill. “Hopefully, they will be open to any suggestions the prisoner would have.”
Death penalty opponents in Nebraska and elsewhere say nitrogen hypoxia remains untested and could inflict serious suffering for the prisoner, potentially in violation of the Eighth Amendment's prohibition on cruel and unusual punishment.
Alex Houchin, the development coordinator at Nebraskans for Alternatives to the Death Penalty, said the new method being adopted is an attempt to sanitize state executions for backers.
"We're lying to ourselves if we think there's a clean way to kill somebody," Houchin said. "We're trying to sanitize it as not as violent as it is."
The Human Rights Council, a branch of the United Nations, said on Wednesday it had concerns about forcing the condemned prisoners to breathe pure nitrogen.
"We are concerned that nitrogen hypoxia would result in a painful and humiliating death," the UN said, adding there was "no scientific evidence to prove" that nitrogen hypoxia would not cause "grave suffering."
An Alabama inmate named Kenneth Smith, who was sentenced to death for a 1988 murder-for-hire of a 45-year-old woman, is currently slated to become the first death row prisoner to be executed by nitrogen hypoxia later this month.
Alabama officials previously attempted to execute Smith in November 2022, but could not place an IV line for the lethal injection. Following the failed execution, the state set a new date for Smith’s death in November 2023, according to the Death Penalty Information Center.
Smith’s attorneys have objected to what they described as a “novel and experimental” method of carrying out an execution, likening their client to a “test subject” for an untested execution method.
Alabama’s protocol for executing prisoners, released in 2023, requires nitrogen to be administered “for 15 minutes or five minutes following a flatline indication on the EKG, whichever is longer.”
Others have raised concerns about the safety of the procedure for staff, medical professionals, spiritual advisors or witnesses, should the mask delivering the nitrogen not be correctly sealed or have leaks.
Houchin said the shift to using nitrogen for executions has come as pharmaceutical companies have limited the availability of certain drugs like sodium thiopental for those purposes.
"People who make pharmaceuticals, generally speaking, make them to help people," he said, adding the same kinds of objections have started emerging surrounding nitrogen.
Nebraska remains one of 27 states where the death penalty is still on the books, but the state has only carried out one execution in nearly a quarter century.
Only four death row inmates have been executed in the last half century; three of those were by electric chair before the Nebraska Supreme Court ruled it unconstitutional in 2008.
In 2015, the Legislature abolished the death penalty in Nebraska, overriding a veto from then-Gov. Pete Ricketts to do so, but voters reinstated it at the ballot box a year later.
Two years later, in 2018, the state executed Carey Dean Moore by lethal injection for the killing of two Omaha cab drivers in 1979, but its stockpile of drugs has since expired.
Aubrey Trail, who was sentenced to death in 2021 for the murder and dismemberment of 23-year-old Sydney Loofe, filed a petition last week seeking to force the state to carry out his sentence, saying he was not interested in languishing on death row for years or decades.
Nebraska effectively does not currently have a method to carry out the sentence it handed down to the 56-year-old, nor to the 10 other people currently on death row.
In July, the Department of Correctional Services confirmed to the Journal Star the state does not have any lethal-injection chemicals in its possession.
Lippincott, who said a constituent in his central Nebraska district brought nitrogen hypoxia to his attention, said he believes in the death penalty for capital crimes and that the state should carry out the sentence it imposes.
“The argument for it is very, very straightforward,” he said.
Co-sponsors of Lippincott’s bill include: Sen. Ray Aguilar of Grand Island; Sen. Joni Albrecht of Thurston; Lincoln Sen. Beau Ballard; Sen. Tom Brewer of Gordon; Sen. Rob Clements of Elmwood; Sen. Barry DeKay of Niobrara; Sen. Myron Dorn of Adams; Sen. Steve Erdman of Bayard; Sen. Brian Hardin of Gering; Sen. Rick Holdcroft of Bellevue; Sen. Mike Jacobson of North Platte; Omaha Sen. Kathleen Kauth; Sen. John Lowe of Kearney; Sen. Fred Meyer of St. Paul; Sen. Dave Murman of Glenvil; Sen. Rita Sanders of Bellevue; and Sen. Julie Slama of Dunbar.
Source:
journalstar.com, Chris Dunker, January 5, 2024
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