Using nitrogen gas in executions will further delay Arkansas death penalty

by Rich Shumate, Columnist, Arkansas Advocate
March 10, 2025

When it comes to administering the death penalty, perhaps the most intractable difficulty is that it’s just really, really difficult to kill someone in a way that isn’t cruel or unusual or messy or doesn’t make us unduly squeamish.

Taking someone who is alive and making them dead requires some level of violence — injecting a fatal dose of chemicals, zapping them with electricity, shooting them, breaking their neck with a rope — that raises profound moral and constitutional issues. And state legislators, including here in Arkansas, are finding new and creative ways to tinker with the machinery of death, as they try to overcome hurdles slowing the pace of executions. 

Rep. Jeff Wardlaw, R-Hermitage, and Sen. Blake Johnson, R-Corning, have proposed a bill to allow the Division of Correction to use nitrogen gas as a method of execution, in addition to the current method of lethal injection. The bill has passed the House and will likely clear the Senate, given that 20 of the 35 senators are co-sponsors.

When Wardlaw defended his bill in committee, he said the idea sprang from a conversation with family members of victims of last year’s mass shooting in Fordyce about possible changes to the state’s death penalty laws. Attorney General Tim Griffin’s staff floated the idea of nitrogen executions during those discussions, he said.

Only one jurisdiction in the United States has ever used nitrogen gas for executions, the state of Alabama, which has killed four men with this method. And here’s what nitrogen gas executions there look like: The prisoner is strapped to a gurney, a mask similar to a fireman’s mask is placed over his face, and he is then suffocated with nitrogen, a colorless, odorless gas that isn’t toxic but kills by replacing oxygen in the lungs as the prisoner breathes it in.

Officials in Alabama have insisted that executions with nitrogen gas are painless and result in rapid unconsciousness. Wardlaw called it “a very quick, humane death.” But the Rev. Jeff Hood, an Old Catholic priest from North Little Rock — who witnessed Alabama’s first nitrogen execution last year of Kenny Smith — said what he saw was neither quick nor painless and amounted to torture.

“This is like strapping people to the top of a rocket and saying, ‘We don’t know where you’re going, but we’re going to light the fuse,” said Hood, whose ministry includes working as a spiritual adviser to Smith and other death row inmates.

Hood said he watched Smith struggle from the moment nitrogen was introduced into the mask, as his body began reacting to the loss of oxygen. Smith convulsed, strained so hard against the straps keeping him on the gurney that it shook, and pushed his face against the mask, which filled up with fluid as he struggled for air. It took 22 minutes before prison officials closed the curtains to indicate that Smith was dead.

Before the execution, prison officials placed oxygen monitors in and around the death chamber and  required Hood to sign a liability waiver in case he was harmed by a nitrogen leak, which he said amounted to “the state admitting that there’s a danger to the people in the chamber.”

Having witnessed eight other executions using lethal injection, Hood said Smith’s execution with nitrogen “was by far the worst that I’ve ever seen” — so much so that he says he’d counsel inmates facing execution to select any other method if they are given an option.

“A firing squad would be far less painful and far less horrific than a nitrogen execution,” Hood said.

Hood is an anti-death penalty activist, and, as such, his views were treated with some indifference when he testified against Wardlaw’s bill at the Capitol. However, media reports of Alabama’s executions also describe prisoners struggling as they were being suffocated. And, of course, the problem with judging whether a new method of death is truly quick and painless is that the only people who can accurately describe the experience are dead.

The introduction of nitrogen gas as a method of execution comes as the death penalty has become something of a dead letter in Arkansas, primarily because the state is having trouble acquiring the drugs used in its lethal injection protocol as drug companies balk at getting involved.

Death sentences are becoming rarer (the 25 men on Arkansas’ death row have all been there since at least 2018), and the state has executed just four men since 2005.

All of those executions took place in an eight-day period in April 2017 as Gov. Asa Hutchinson and corrections officials raced to complete eight scheduled executions before the state’s supply of one of the lethal injection drugs expired — a gruesome spectacle that drew international condemnation.

Presumably, Arkansas would only proceed with a nitrogen gas execution as an alternative method if lethal injection continues to be unavailable. However, Wardlaw and Johnson’s bill leaves the choice of execution method entirely to the discretion of the director of the Division of Correction. 

The bill doesn’t address the quality or concentration of the nitrogen or whether it should be administered with a mask or in a gas chamber, letting corrections officials develop a protocol for carrying out nitrogen gas executions with no guidance for how that should be done or the parameters of the protocol.

Critics of the bill believe those provisions run afoul of a 2012 Arkansas Supreme Court decision, Hobbs vs. Jones, that struck down the state’s death penalty statute because it gave the Department of Corrections too much discretion in what drugs would be used in lethal injections, without sufficient legislative guidance.

A statute that provides “absolute, unregulated and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers,” the court majority said.

The irony here is that should the state ever try to execute an inmate with nitrogen, it will trigger a lengthy legal battle up and down both federal and state courts, which will indefinitely delay executions that the nitrogen option was supposed to jump start.

In addition, the three largest U.S. manufacturers of nitrogen gas have responded to states adopting nitrogen as an execution method by prohibiting their products from being used. 

And that is the conundrum at the heart of the public policy debate over capital punishment — Arkansas and other death penalty states are tangling themselves in more and more legal, ethical and practical knots as they try to rescue a policy that remains politically popular but has become increasingly unworkable.

Given the legal challenges and the unavailability of drugs, there’s a decent chance that none of the 25 men on death row in Arkansas — some of whom have been there since the 1990s — will ever face execution, by either lethal injection or nitrogen gas.

The rational choice would be to accept that fact, move on, and stop pouring resources into defending an untenable policy. The irrational choice would be adopting a new, experimental method of execution,  triggering a whole new batch of legal challenges, and pretending that we’ve figured out a way to kill people that’s less violent than the methods already in use.

Arkansas Advocate is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arkansas Advocate maintains editorial independence. Contact Editor Sonny Albarado for questions: info@arkansasadvocate.com.

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