Death’s new formula
On February 28, the State of Oklahoma Department of Corrections released a Death Row Monthly Roster consisting of 48 names (47 men and 1 woman) and they’re all, as John Prine once sang, “waiting to die, they won’t never be free.”
They may not have to wait much longer.
First, a little history.
Since 2015, there has been a moratorium on executions in Oklahoma because, as the bipartisan Oklahoma Death Penalty Review Commission concluded, “A review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely.”1
Commission co-chair Andy Lester said in 2017, “Our overall recommendation was that the state keep the current moratorium on executions in place. If we’re going to have the penalty, we need to do it the right way.”2
Last month, however, Oklahoma Attorney General Mike Hunter and Director of Corrections Joe M. Allbaugh decided “we’re good to go.”
In a press release from March 14, 2018, announcing a new execution protocol called Nitrogen Hypoxia, Hunter said, “The new procedure is the best way for the state to move forward with executions and ensure justice is met for victims of heinous crimes.”3
And we’re off.
It’s not that new, actually. The procedure was approved in 2015 as a secondary method of execution by the Oklahoma Legislature. It involves sealing prisoners in some kind of airtight compartment and filling their lungs with nitrogen gas until they die from lack of oxygen.
Nitrogen gas has yet to be put to the test as a method of capital punishment—no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them.
(It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.4
Apparently that passes for due diligence these days, so Hunter and Allbaugh now believe the time has come for the procedure, as the press release states, to be “the primary method of execution.”
Why the rush?
Allbaugh said in trying to find a supply of lethal drugs he was forced to deal with “seedy individuals” who may have had access to them.
“I was calling all around the world, to the back streets of the Indian sub-contient.”5
You hope he’s being hyperbolic.
It used to be we strapped those on death row into electric chairs and forced 2,000 volts through them, but often their vital organs would melt and heads would burst into flames, so a new, more humane method had to be found. And it was—a lethal dose of injected chemicals. But that is a costly and imprecise method. Pharmaceutical companies soon got tired of protesters and boycotts, and prison personnel couldn’t always find a vein, anyway, so another method had to be found. Which is how we got to nitrogen.6
Death has always been in the details.
For starters, death penalty experts say the use of nitrogen gas on unwilling subjects—in this case, prisoners—would not go as smoothly as it does for, say, assisted suicide patients. An additional problem is the delivery system.
The two most talked-about ways of delivering the nitrogen are 1) by placing a facemask around the mouth and nose of the offender, and 2) by placing him or her inside some kind of medical tent or small chamber.
Yes, a gas chamber.
Let the image sink in for a moment.
Hunter says the state has waited long enough:
“The people of Oklahoma spoke clearly when an overwhelming majority of the electorate voted to amend the constitution and guarantee the state’s power to impose capital punishment two years ago. As state leaders, it is our duty to utilize an effective and humane manner that satisfies both the constitution and the court system.”
Ziva Branstetter, former executive editor of The Frontier, witnessed the last two executions and saw just how unsatisfactory the state can be in these matters.
“I think Oklahoma has never adequately owned up to how it botched the [Clayton] Lockett execution [or] held anyone accountable for the multiple failures that night, especially those who were running the process: Gov. Fallin and [then-Attorney General] Scott Pruitt,” Branstetter said. “I think the fact that Oklahoma actually used a lethal drug not on its execution protocol once and almost used it a second time in light of the … Lockett execution raises serious questions about why the state should be trusted when it says it can carry out a whole new method of execution that has no apparent scientific foundation.”
Dahlia Lithwick of Slate magazine said at the time about Lockett: “Oklahoma killed a man while trying to execute him.”
It was an absolute shit show.
“He hit the artery and blood started backing up into the IV line,” the paramedic told state investigators. “And I told him. I said [redacted] you’ve hit the artery. Well, it’ll be alright. We’ll go ahead and get the drugs. No. We can’t do that. It doesn’t work that way and then I wasn’t telling him that. I mean I wasn’t trying to countermand his authority but he was a little anxious. I don’t think he realized that he hit the artery and I remember saying you’ve got the artery. We’ve got blood everywhere.”7
What happened was not only ghastly—it had the inexplicable and unfortunate consequence of turning Lockett into a sympathetic figure.
Another witness said the scene “was like a horror movie” as Lockett was bucking and attempting to raise himself off the gurney when he was supposed to be unconscious and dying.8
There is also the matter of the Eighth Amendment, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
And what happened to Lockett, whatever you think of him, was clearly that.
When the U.S. Supreme Court was asked to rule on this very issue—the case involved the 2015 halted execution of Richard Glossip—Associate Justice Samuel Alito waved off the cruel and unusual part:
Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.9
Good God, what a monster.
Glossip received a stay of execution twice, you may remember: the first time to hear new evidence, the second when the state discovered one of the three drugs he was to be given was the wrong one.
(The state was supposed to use potassium chloride as part of the three-drug cocktail but didn’t realize it had received potassium acetate from its supplier until moments before the execution. Most people don’t leave CVS without checking their scripts, but apparently nobody connected with this execution bothered to check what kind of potassium the state had until Glossip had already finished his last meal.)
“Using an inert gas will be effective, simple to administer,” said Hunter, “easy to obtain, and requires no complex medical procedures.”
What could go wrong?
“What Oklahoma is doing is not a scientific endeavor,” said Joel Zivot, an anesthesiologist at Emory University. “I can’t put my scientific head to it. Not only is there no medical indication whatsoever for nitrogen gas, the question of whether nitrogen inhalation would be ‘effective’ and painless cannot ethically be studied by the medical profession. How this will work is known only to them,” Zivot added. “It’s nonsense, empirically.”10
“They say the same thing about each new method,” Branstetter said. “‘It will be so easy and painless. It’s more humane.’ It just isn’t effective and it’s silly to pretend this is a medical procedure.”
Silly, too, to think any execution method, even if done correctly, has any impact on crime.
Over all, 94 percent agreed that there was little empirical evidence to support the deterrent effect of the death penalty. And 90 percent said the death penalty had little effect overall on the committing of murder. Additionally, 91.6 percent said that increasing the frequency of executions would not add a deterrent effect, and 87.6 percent said that speeding up executions wouldn’t work either.11
This is grisly, costly, and (at best) inefficient business. Still, it would be nice if we got it right, for without competence, without accountability, these executions become snuff porn.
But maybe the problem is that the whole exercise is insurmountable. Maybe it’s simply impossible for civilized societies to execute its own citizens with any degree of humanity and equity.
In “Aftershock,” the finale of the sixth season of “Law & Order,” the main characters witness a successful execution. The show traces what happens to them afterwards. One of the characters, Lieutenant Anita Van Buren, writes a letter to her mother, explaining the day’s events, the crime committed, the execution.
A crowd of people stood and cheered when he raped her. They were supposedly good people, and they did absolutely nothing. Then he beat her to death with a tire iron, and today the state of New York got its revenge. It’s not enough, and it’s
Then there is the matter of those gas chambers.