In January, Alabama became the first U.S. state to use nitrogen hypoxia as an experimental protocol to execute Kenneth Smith, who had survived a botched lethal injection two years earlier. This protocol involved strapping Smith to a gurney, placing a respirator mask over his face, and pumping in nitrogen gas for 15 minutes, depriving him of oxygen and thereby suffocating him. Smith was declared dead 12 minutes after the execution began, and was reported to have been conscious, writhing, and convulsing for several minutes during the protocol.
Days after Smith’s execution, Ohio Republicans introduced House Bill 392 to put humans to death by nitrogen hypoxia, the very same legislature that had passed a law to ban gas as a method to euthanize domestic animals nine months prior.
Alabama and Ohio are not alone. Oklahoma was the first state to legislate the use of nitrogen hypoxia in 2015 with Senate Bill 794, after then-state Rep. Mike Christian (R-District 93) promoted the idea, backing it by referencing an unpublished, non-peer-reviewed paper hypothesizing that nitrogen gas death would be painless. Three criminal justice professors, one of whom was a friend of Christian’s, wrote the paper without consulting any medical experts.
Mississippi Legislative Bill 970 was also passed in 2015, allowing for execution via nitrogen hypoxia. Louisiana joined these states early this year when House Bill 6 passed unanimously. Nebraska, with its Legislative Bill 970, is also considering legislation to allow nitrogen hypoxia as an execution method.
Why and how did these states end up in this situation, abandoning lethal injections in favor of nitrogen gas?
As Americans have increasingly turned against the death penalty over the past 20 years, it has created market pressure discouraging drug companies from providing the compounds for execution. States that are insistent on retaining the death penalty have been turning to other methods where companies don’t have such a strong hold on the supply of the means of execution, such as lethal gas.
And, as a way of shutting down both criticism and democratic activism about the death penalty, states have deliberately been shrouding their executions using secrecy statutes, such as shield laws. Such statutes remove transparency from execution protocols, personnel, products, and suppliers. Since 2010, 14 of the 27 states that still use the death penalty have passed such laws, thereby preventing the public from truly understanding how these systems work—or fail to work. These statutes can also prevent companies and hospitals opposed to having their product used for executions from finding out. Enacting these laws has removed government transparency and is at odds with the free market and an informed democracy.
The reason why states that still use the death penalty are eager to approve nitrogen gas is partially because large private companies that produce the drugs needed to carry out lethal injections, the most common form of execution for about 50 years, are now unwilling to sell them to the government for this purpose. According to the Lethal Injection Information Center, there have been at least 60 global companies that are preventing their products from being used in executions (the European Union prohibits member states from trading goods that can be used for execution). Many have issued public statements speaking to their corporate values and how being a supplier of drugs to kill people doesn’t align with those. For example, pharma giant Pfizer issued the following statement:
Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment…[Our] obligation is to ensure the availability of our products to patients who rely on them for medically necessary purposes…We are enforcing a distribution restriction for specific products in the same class of drugs that have been part of, or could be considered by some states, for their lethal injection protocols.
A Johnson & Johnson spokesperson similarly stated that the company “develops medical innovations to save and enhance lives…We do not condone the use of our products for lethal injections in capital punishment.”
For these companies, their involvement in supplying pharmaceutical products for lethal injection is not only opposed to values that have become dominant in an era of corporate social responsibility and philanthropic capitalism. It is simply bad business.
There may be national companies whose corporate values do align with having their products be used in executions or who think that their consumer base will be unmoved or even motivated to buy their product due to their involvement in capital punishment. But this seems unlikely. There is no organized and motivated pro-death penalty movement. The amount of profit to be made by supplying execution drugs to the state versus the amount to be lost when large numbers of a consumer base may switch suppliers and corporate image is damaged is miniscule.
With national companies’ refusal to openly supply the government, states face drug shortages that prevent them from carrying out executions. Some of these states have resorted to tactics as desperate as trying to illegally import these drugs from India. But more frequently they have turned to local compounding pharmacies without a large retail presence or robust public relations departments. These pharmacies mix or modify drugs to order and do not have to abide by FDA approval processes, which can result in improperly manufactured products that may lead to botched executions.
Even compounding pharmacies, though, have been stepping away from government contracts for execution drugs, realizing that the public backlash surrounding the use of their drugs in executions is not worth the small profit they make via such limited numbers of executions. Houston-based Greenpark Compounding, for instance, no longer makes execution drugs since becoming a protest target after investigative reporters published information regarding the company’s involvement in providing such drugs. Several pharmacy groups representing compounding pharmacies, like the International Academy of Compounding Pharmacists, have advised members to stop providing execution drugs.
Now that some states are turning to nitrogen hypoxia, large gas companies have begun to take similar measures to limit selling products for use in executions and to announce their position publicly. Airgas is the largest U.S. packaged gas distributor, with 24 branches in Alabama alone. In 2023 Airgas issued a statement:
Notwithstanding the philosophical and intellectual debate of the death penalty itself, supplying nitrogen for the purpose of human execution is not consistent with our company values…Airgas has not and will not supply Alabama nitrogen or other inert gases to induce hypoxia for the purpose of human execution.
The free market imperative that companies be open, transparent, and responsive to consumers has effectively limited states’ ability to execute in a medicalized, “humane” fashion, the only manner that receives enough public approval to maintain the system in the first place. The mushrooming of secrecy laws has acted against this democratic feedback mechanism.
Opacity in state dealings with private companies, and the usage of products provided by companies, is not in the interest of consumers, businesses, or taxpayers. Secrecy is also not in the best interest of democracy, which is reliant on its citizenry being informed about and able to debate freely the penal policies and practices for which we elect our representatives to enact. Equally troubling has been the official secrecy surrounding the execution protocols themselves. For instance, in Alabama, it is the position of the Department of Corrections that the nitrogen hypoxia protocol is confidential and not subject to public records requests.
State secrecy about matters of public policy signifies a political order that does not support principles of liberty, including freedom of information, democracy, and limited incursion on the fundamental freedom of human beings. This is especially compelling when dealing with penal policy that prescribes death to a citizen. In the case of the state’s use of lethal gas in executions, a remarkable lack of reflexiveness of its linkage to authoritarian regimes has been exhibited.
U.S. companies have, under the free market conditions of transparency, been key players in making capital punishment more difficult for the state. State secrecy laws connected to capital punishment should be overturned in favor of increased government transparency and accountability. Transparency would allow for principles inextricable from democracy and the free market, including freedom of access to information on which citizens base their decisions for spending, governance, and policy, to flourish.