Alabama’s Plan to Execute Prisoners With Nitrogen Gas Is Immoral

In November of 1985, legendary liberal Supreme Court Justice William J. Brennan Jr. declared, “the fatal constitutional infirmity of capital punishment is that it treats members of the human race as non-humans, as objects to be toyed with and discarded.”

With Alabama primed to gas condemned prisoners to death with nitrogen — and with other states, potentially, to follow suit — it is time to reboot Brennan’s courageous words against exterminating flesh-and-blood human beings, irrespective of their crimes — and as the L.A. Times observed at the time, “despite the contrary views of the court majority and the American public.”

Recently released, Alabama’s ghoulish, heavily redacted nitrogen-gassing protocol instructs that a “mask will be placed and adjusted on the condemned [prisoner’s] face.” Never before used as a method of execution, an objectively critical component to the “success” of this novel experiment — in state-sanctioned punishment — will be how effective Alabama’s executioners are at affixing the state’s new gas mask. Immediately prior to starting the flow of gas, the protocol instructs: “The team members inside the execution chamber will make a final inspection of the mask.”

Now even before considering the horror (the gasping and choking for an extended, intolerable period of time) as well as the grievous danger to all present should the mask not be properly affixed before the nitrogen is introduced — either because the prisoner resists, or through error by the executioners — it’s useful to pause, and recall, without much effort, the fact that Alabama executioners have patently — and serially — screwed up so many executions in recent years via lethal injection, it’s hard to keep track of them all.

This is also a good time to point out: Alabama’s gassing-to-death protocol mandates “All portable [oxygen] monitors and/or gas-measurement devices will be tested and inspected” according to four specified instructions “on proper calibration,” three of which are completely redacted; the only non-redacted calibration instruction — for the critical equipment Alabama intends to use to measure oxygen and nitrogen levels during the execution — isn’t exactly awe-inspiring. Rather, it sounds like something one might do with a refrigerator or a dehumidifier that’s on the fritz (“to calibrate these devices (1) take the unit outdoors to an area of fresh air (avoid exhaust vents, smoking areas, etc.”).

Spiritual advisors for the condemned, citizens with any respect for the holy services these men and women provide, even odds-makers in Vegas guessing how well this American adventure in cruelty is going to work, especially note the protocol clearly advises, in again, not the most comforting or confidence-inspiring legalese: “No spiritual advisor or alternate spiritual advisor shall be allowed in the execution chamber unless they review and sign the spiritual advisor nitrogen hypoxia acknowledgment form.”                    

In “The Pale Death: Poison Gas and German Racial Exceptionalism, 1915-1945,” published online by the Cambridge University Press in 2021, Peter Thompson wrote that Nazi leader Heinrich “Himmler claimed [the use of poison gas] would relieve German soldiers of the ‘psychological burden’ of murder, which could possibly turn them into savages. Indeed, gas was posited as a ‘humane’ weapon that differentiated the Germans from other uncivilized peoples.”

Illuminatingly Thompson also tells the tale of Major General Berthold von Deimling, who, during World War I, commanded forces in the First Battle of Ypres, during which he oversaw a chlorine gas attack which led to thousands of casualties. Afterward, Deimling reflected “I must admit that the task of poisoning the enemy as if they were rats went against the grain with me as it would with any decent sentient soldier.”

For spiritual advisors, executioners, and witnesses to the first nitrogen gassing in Alabama (and for others present at potential prospective gassings in other states, should gassing “catch on”), it’s critical to learn from the fact that, though the Battle of Ypres occurred outdoors, thousands of German soldiers also perished from the gas (“these men were German soldiers who had inhaled chlorine either while installing the gas batteries or venturing too close to the gas during the attack”).

Unlike the chlorine gas used at Ypres, nitrogen gas, which Alabama is determined to test out, is colorless and odorless, therefore much more dangerous to perceive and difficult to control — for its lethal, unintended risks. As Dana G. Smith highlighted in Scientific American about Alabama’s nitrogen execution aspirations: “If a mask is used, it must have an airtight seal so that the inmate cannot breathe any oxygen and prolong their death and so that the execution team and witnesses are not exposed to potentially deadly levels of the gas.”

If Germany’s hellacious use of gas as a killing method isn’t enough for Alabamians and Americans to declare “Enough already!,” galvanizing meaningful direct action to stop Alabama’s addiction to torture, perhaps they should listen to Danish anti-torture group Dignity, which reported earlier this year on Russian forces torturing civilians with gas masks.

Or maybe take the odious comparison with Russia back even further, to the Second Chechen War of 2000, when Guardian journalist John Sweeney cited a prisoner as saying: “Once the gas mask was on, they would choke you, so you were gasping to breathe. And they would let go and you would breathe in deeply. And then they would squirt CS gas down the breathing hole.”

Friedrich Nietzsche philosophized: “Just as custom appears as a consequence of an era, a people, a direction of spirit, so morality is the result of the universal development of mankind.” If a nitrogen gassing execution ever takes place in this country, and worse, should nitrogen gassing executions become routine, the direction of our American spirit, our very morality, will be worse than sullied; it will be irretrievably lost.

*Note: This piece originally appeared on Jurist: Alabama’s Plan to Execute Prisoners With Nitrogen Gas Is Immoral. For proper citation: Stephen A. Cooper, “Alabama’s Plan to Execute Prisoners With Nitrogen Gas Is Immoral, Jurist, September 13, 2023.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.