Ohio lawmakers introduce bill to allow execution by nitrogen gas following Alabama

Kenneth Smith was the first American to be executed by nitrogen gas last week.

January 30, 2024, 1:55 PM

Ohio lawmakers have introduced a bill that would allow execution by nitrogen gas, a controversial practice critics call untested and lacking in evidence that it's more humane than lethal injection, after Alabama became the first state to execute someone with nitrogen gas.

Ohio state Reps. Phil Plummer and Brian Stewart, both Republicans, introduced legislation during a press conference Tuesday that would allow executions to be conducted via nitrogen gas, known as nitrogen hypoxia.

"Nitrogen hypoxia is an alternative method for carrying out capital punishment that has been made available in other states," Stewart told reporters. "The legislation introduced by Rep. Plummer and I will authorize the state of Ohio to utilize nitrogen hypoxia, in addition to lethal injection, and directed [that] it shall be used in instances where lethal injection is not an available means of carrying out a capital sentence."

Ohio Attorney General Dave Yost expressed his support for the bill during the press conference and said he believes some crimes are "so heinous" they deserve the "ultimate punishment."

"I am aware of the moral weight of this debate, but this is law of the land," Yost said. "If we wish to break the promises that we made to the families of all these victims over all these years, if we wish to not keep faith with the jurors that we asked to take this heavy weight on to make a judgment, then we owe it to our society and to all those that are involved to own our decision to change our minds."

Yost previously expressed support for the nitrogen gas method after Kenneth Smith, 58, a convicted murderer, was put to death Thursday in Alabama. Three states -- Alabama, Mississippi and Oklahoma -- have approved nitrogen gas as a form of execution.

Kenneth Eugene Smith, convicted for a murder-for-hire committed in 1988, and scheduled to be executed in the U.S. state of Alabama by asphyxiation using pure nitrogen, poses for an undated booking photo at Holman Prison in Atmore, Ala.
Alabama Department of Corrections via Reuters, FILE

The protocol in Alabama called for Smith to be strapped to a gurney and fitted with a mask and a breathing tube. The mask is meant to administer 100% pure nitrogen, depriving the person of oxygen until they die.

"Perhaps nitrogen -- widely available and easy to manufacture -- can break the impasse of unavailability of drugs for lethal injection," Yost wrote Friday on the platform X, previously known as Twitter. "Death row inmates are in greater danger of dying of old age than their sentence."

Ohio currently has 129 people on death row, according to the Death Penalty Information Center, a nonprofit that provides data and analysis on capital punishment.

The state has not executed anyone since 2018, when a de-facto moratorium was put in place. At the time, the governor's office claimed there was a lack of access to certain drugs used for lethal injection.

Stewart on Tuesday criticized Gov. Mike DeWine, a Republican, for issuing several reprieves and questioned whether it was actually difficult to obtain lethal injection drugs.

"Florida has been using lethal injection drugs during that entire period of time; other states have, as well, including the federal government," he said during the press conference. "I think we have a reasonable question as to whether it's actually a[n] impossibility to find those drugs if all the other states and the federal government are able to do so."

DeWine told The Associated Press in 2020 that "[l]ethal injection appears to us to be impossible from a practical point of view today," and said he was unsure if capital punishment is a crime deterrent.

Yost told reporters Tuesday that nitrogen gas is widely available commercially, can be manufactured easily and that he believes the state should be able to secure a contract to obtain the gas.

While Alabama officials said execution by nitrogen gas was a more humane and painless form of death, medical and legal experts previously told ABC News there was no evidence to suggest this.

Additionally, eyewitnesses to Smith's execution said it took 22 minutes to complete, The Associated Press reported, and that, "for at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints." State officials had said Smith would lose consciousnesses within seconds and die within minutes.

In Ohio, not everyone is in support of resuming executions, In September 2023, a bipartisan group of state lawmakers introduced a bill that would abolish the death penalty and make the maximum sentence for a crime be life in prison without parole.