Could Ohio be next US state to use controversial nitrogen gas in executions? New method would end five-year halt

Republican Ohio Attorney General Dave Yost (centre) speaks at a news conference at the Ohio Statehouse in Columbus, Ohio, where he expressed his support for legislation that would allow the state to begin using nitrogen gas to carry out the death penalty. Photo / AP

Ohio’s Republican attorney-general has put his weight behind a legislative effort to bring nitrogen gas executions to the US state, joining what could be a national movement in pro-death penalty states to expand capital punishment on the heels of Alabama’s first use of the method last week.

Three states - Alabama, Mississippi and Oklahoma - have already authorised nitrogen hypoxia as an execution method and many more are looking for new ways to execute people because the drugs used in lethal injections have become difficult to find.

Ohio attorney-general Dave Yost said adding nitrogen gas as an execution alternative in Ohio could end an unofficial death penalty moratorium that Republican Governor Mike DeWine declared in 2020. The governor said at the time that lethal injection was “no longer an option” for Ohio because of difficulties finding drugs and repercussions the state could face from drugmakers if one of their pharmaceuticals was used in an execution. The state’s last execution was in 2018.

“Saying that the law of Ohio should be thwarted because pharmaceutical companies don’t want to sell the chemicals is an abdication of the sovereignty of the state of Ohio, which still has this law on the books,” Yost said.

He was joined at a news conference today by Republican state representatives Brian Stewart and Phil Plummer, who introduced a bill today to add the new method. Alabama used it for the first time Thursday, when convicted murderer Kenneth Eugene Smith, 58, was put to death with nitrogen gas administered through a face mask to deprive him of oxygen.

The execution took about 22 minutes from the time between the opening and closing of curtains to the viewing room. Smith seemed to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints.

State officials in Alabama said the process was humane and effective, while critics called it cruel and experimental.

The Ohio bill would give condemned inmates a choice between lethal injection and nitrogen gas but would require their executions to go forward with nitrogen gas if lethal injection drugs are not available, Stewart said.

Yost said nitrogen gas is abundant and would be easy for the state to procure from the private sector. At least one private company, industrial gas distributor Airgas, has announced its opposition to supplying nitrogen for executions.

Yost, a former prosecutor and potential 2026 gubernatorial contender, said he is not concerned that the method has been used only once and that Smith appeared to struggle for several minutes as he died.

Anti-death penalty activists place signs along the road heading to Holman Correctional Facility in Atmore, Alabama, ahead of the scheduled execution of Kenneth Eugene Smith in late January. Photo / AP

“It’s important to recognise that Europe is already using this for assisted suicide,” he said.

While a 3-D printed pod that employs nitrogen gas, the Sarco capsule, has been privately used for that purpose in Switzerland, the device has not been approved for use by any Swiss agencies. The European Union and the United Nations’ human rights office expressed regret over the Alabama execution on Friday.

Plummer, a former county sheriff, said lengthy delays are defeating part of the purpose of Ohio’s death penalty law: “We need some closure for the victims in cases like these ones.”

Stewart criticised DeWine for delaying so many executions over pharmaceutical companies’ unwillingness to see their products used to put people to death. He noted that Florida and the federal government have continued administering lethal injections while Ohio’s unofficial pause has been in place.

Yost noted that the federal government had a stockpile of drugs, putting it in a potentially different position than Ohio.

Ohio’s last execution was on July 18, 2018, when Robert Van Hook was put to death by lethal injection for killing a man he met in a Cincinnati bar in 1985. His was the 56th execution since 1999.

Amid the unofficial moratorium, bipartisan groups of lawmakers have repeatedly pushed bills to eliminate the state’s death penalty, including one this session.

Ohio Senate Democratic leader Nickie Antonio, who backs abolishing the death penalty, said she was appalled at the proposal. She called nitrogen gas “so unconscionable that veterinarians reject its use to euthanise animals”.

“There is no humane form of execution in 2024,” she said in a statement. “It is unfortunate that anyone would rush to the nearest camera to plead for the introduction of experimental methods to resume the barbaric practice.”

DeWine - who helped write the state’s current law, enacted in 1981 - has stopped short of supporting a death penalty repeal. But he has increasingly questioned the law’s value because of the long delays that elapse between crime and punishment.

The governor told The Associated Press during a year-end interview last month that he was not prepared to announce whether he would support an outright repeal.

“I did make it clear a few years ago that we could not carry out executions in the state of Ohio under the current law,” DeWine said. “There’s been really no movement in the state legislature to come up with a different way of execution.”

He said that would have been “the logical thing”, if support were there for continuing the practice.

DeWine’s spokesman, Dan Tierney, said the governor typically does not comment on pending legislation. Tierney noted that no death penalty-related legislation, whether for or against, has moved in recent years.

Ohio has 118 men and one woman on death row, according to the most recent state report.