Major Gas Suppliers Are Backing out of Executions. Will It Matter?
Plus: Willie Pye's upcoming execution.
Nitrogen gas hypoxia, the new hope for humane (and more importantly, logistically convenient) executions, has for all of its short history looked a lot like lethal injection. Now, it’s beginning to face the same hurdle that made lawmakers seek alternatives to lethal injection, decades ahead of schedule: major suppliers aren’t keen on being collaborators.
Air Liquide, which said it wouldn’t sell nitrogen to be used in executions while the method was still theoretical, reiterated that policy in a statement to The Guardian’s Ed Pilkington last week; the French gas manufacturer owns Airgas, the largest gas distributor in America. Air Liquide was joined by Air Products and Matheson Gas, forming a trio that represents
Why It Should Matter
Proponents of nitrogen gas asphyxiation have largely rested on two arguments for the method: easy availability and the ability to succeed where lethal injection didn’t in ensuring humane executions. Making it harder to secure medical-grade nitrogen gas affects both of those arguments. Nitrogen isn’t a hard gas to find (it’s most of the air you’re breathing right now), but its purity varies wildly between applications: while medical-grade nitrogen has a minimum purity of 97%, while certain industrial uses drop as low as 95%. This is important because, as the elevator pitch of nitrogen gas asphyxiation goes, nitrogen gas provides a humane execution by immediately rendering the condemned unconscious. Continued industry action might put the state in the uncomfortable position of either scrambling for medical-grade nitrogen access—the very supply issue nitrogen gas asphyxia was supposed to fix—or lowering the purity of the nitrogen they use, undercutting their arguments on its humanity.
Why It Likely Won’t
The trouble with arguing against the humanity of an execution method is that states generally don’t care, and the Roberts Court doesn’t seem inclined to make them. In 2014, faced with fairly concrete evidence that Oklahoma’s execution protocol didn’t work in Glossip v. Gross, the Court allowed Oklahoma to carry on; eventual majority opinion author Justice Alito laying the blame for Clayton Lockett’s torture on “guerrilla war[riors]“ trying to stop them. If states were simply to drop their purity requirements to carry on the way they moved to lower-quality sedatives, they’d likely get a rubber stamp from the Court. Alabama’s protocol, meanwhile, does not set out a nitrogen purity requirement.
Beyond that, these manufacturers’ policies aren’t guaranteed to do much. Pilkington couldn’t get Linde, the other major manufacturer of medical nitrogen, to commit to the same policies on record, and none of the manufacturers were specific about how they intended to stop sales to prison systems, much less how those policies would interact with the kind of cloak-and-dagger tradecraft and state-mandated secrecy states have implemented to counter resistance to lethal injection.
The gas manufacturers’ resistance isn’t nothing; at the very least, it’ll help make clear that states have never been all that interested in humane executions, at a time when the bizarrely resilient public misconception that lethal injection is humane may be the only thing keeping capital punishment viable. But in the meantime, don’t expect it to stop the killing.
Dying Today: Willie James Pye
Absent extremely unlikely gubernatorial or SCOTUS intervention, Willie James Pye will see his execution for the murder of ex-girlfriend Alicia Lynn Yarbrough carried out tonight. It will be Georgia’s first execution since 2020, and will follow a single-drug pentobarbital protocol similar to those I outlined last month ahead of the execution of Ivan Cantu by Texas and attempted execution of Thomas Creech by Idaho.
Upcoming Book: Death Row Welcomes You
Last week, Friend of the Project Radley Balko gave over “The Watch“ to an excerpt from Steven Hale’s Death Row Welcomes You. In addition to wrestling with ethical and religious questions outside my scope but ever on my mind, it offers a firsthand account of a botched execution. It’s well worth your time, and I’ve already pre-ordered its Kindle release next week.