Arkansas governor signs legislation permitting executions by nitrogen gas – JURIST

Arkansas Governor Sarah Huckabee Sanders signed House Bill 1489 on Tuesday, making Arkansas the fifth state to permit executions by use of nitrogen gas. The signing of this legislation coincides with Louisiana’s first execution by this method of Jessie Hoffman the same day.

Titled “An Act to Amend the Method of Execution to Include Nitrogen Gas” (“the Act”), § 1 of the Act replaces the term “punished by death by lethal injection” to more generally and broadly, “punished by death.” Section 2(a) proceeds to more specifically instruct the corrections department to “carry out a sentence of death either by intravenous lethal injection…or by nitrogen gas.” Per § 2(b), the director of corrections is required to provide notice to the condemned prisoner of the method of execution within seven days of receiving a warrant of execution from the governor. 

Section 2(m) of the Act acts as as a safe harbor provision that defaults to execution by electrocution if other execution methods such as nitrogen gas and/or lethal injection “are invalidated by a final and unappealable court order.”

Section (2)(n) specifically notes that “A sentence of death shall not be reduced as a result of a method of execution being declared unconstitutional.” Finally, § 2(o) protects all participants who assist in any method of execution, including execution by nitrogen gas, by providing them immunity.

Arkansas has not had an execution since 2017 when it executed four individuals by lethal injection. The nitrogen gas hypoxia method forces the gas through a mask to the inmate who is consequently deprived of the oxygen needed to stay alive. 

Alabama became the first state last year to specifically authorize such an execution in the US since lethal injection was first introduced in 1982. That execution lasted more than 20 minutes that apparently included four-to-six minutes of struggling, writhing, and shaking against restraints, followed by five-to-seven minutes of deep breathing. Mississippi and Oklahoma have yet to carry out an execution by this method.

The Act has generated a lot of controversy on both sides of the political spectrum. Democratic Senator Greg Leding opposed the bill stating: “Our response to a horrific act of violence cannot be another horrific act of violence.” Leding also raised concerns regarding the dangers to the prison staff administering this method of execution due to the colorless and odorless nature of nitrogen gas.

On the other hand, Arkansas Attorney General, Tim Griffin, was supportive of the law stating:

As a state we have failed to keep our promises to the friends and family of victims to execute those sentenced to death under our laws… That ends now. [HB 1489] gives the state the tools needed to carry out these sentences and deliver justice.