Three of the largest manufacturers of medical-grade nitrogen gas in the US have barred their products from being used in executions, following Alabama’s recent killing of the death row inmate Kenneth Smith using a previously untested method known as nitrogen hypoxia.
The three companies have confirmed to the Guardian that they have put in place mechanisms that will prevent their nitrogen cylinders falling into the hands of departments of correction in death penalty states. The move by the trio marks the first signs of corporate action to stop medical nitrogen, which is designed to preserve life, being used for the exact opposite – killing people.
The green shoots of a corporate blockade for nitrogen echoes the almost total boycott that is now in place for medical drugs used in lethal injections. That boycott has made it so difficult for death penalty states to procure drugs such as pentobarbital and midazolam that a growing number are turning to nitrogen as an alternative killing technique.
Now, nitrogen producers are engaging in their own efforts to prevent the abuse of their products. The march has been led by Airgas, which is owned by the French multinational Air Liquide.
The company announced publicly in 2019 that supplying nitrogen for the purposes of execution was not consistent with its values. The move followed Oklahoma becoming the first state to adopt nitrogen hypoxia as a capital punishment protocol in 2015.
“Airgas has not, and will not, supply nitrogen or other inert gases to induce hypoxia for the purpose of human execution,” the company said in a statement.
Nitrogen hypoxia involves forcing a prisoner to breathe nitrogen, and nitrogen alone, through an airtight gas mask. The procedure leads to oxygen deprivation and death.
The four states that currently have nitrogen hypoxia on their books – Alabama, Louisiana, Mississippi and Oklahoma – claim it is a quick and humane death. But when Alabama became the first state to carry out an execution using this method in January, witnesses recounted how the prisoner, Smith, writhed and convulsed on the gurney for several minutes.
“His took deep breaths, his body shaking violently with his eyes rolling in the back of his head,” a reporter from the Montgomery Advertiser said.
Two other major nitrogen manufacturers have also confirmed to the Guardian that they are restricting sales of their gas. Air Products said that it had established “prohibited end uses for our products, which includes the use of any of our industrial gas products for the intentional killing of any person (including nitrogen hypoxia)”.
Matheson Gas said that supplying nitrogen gas for use in executions was “not consistent with our company values”, and that it would not do so.
Other manufacturers of medical nitrogen in the US were more circumspect. Linde, a global multinational founded in Germany and headquartered in the UK, would not say whether it was willing to sell its product for use in US death chambers and declined to comment.
One of the attractions of nitrogen for death penalty states compared with lethal injection drugs is that the gas is much more freely available. It is widely produced and distributed for industrial uses.
However, only a few companies produce medical-grade nitrogen that has been approved by the US Food and Drug Administration (FDA) for use with humans. The three producers who told the Guardian they have end-use protections in place are among the biggest suppliers of medical nitrogen, which is more carefully purified and regulated than its industrial equivalent.
Alabama has shrouded the source of its nitrogen in secrecy, in the hope of obscuring its supply lines and avoiding the kind of boycott that has troubled lethal injection drugs. If it became known that its gas was industrial quality and not approved for human use, that could lead to major legal challenges and puncture its public posture that nitrogen hypoxia is a humane way to end life.
“When nitrogen is used in industrial processes, it’s not intended for inhalation and there would be questions about whether it is pure enough. People are entitled to basic human rights, even as you are trying to kill them,” said Robert Dunham, director of the Death Penalty Policy Project.
Dunham added that if less stringent purification standards for industrial nitrogen led to a quotient of oxygen being present in the product, it could prolong the execution process with dire results.
Despite the opposition of manufacturers, nitrogen continues to be a growth industry for death penalty states. On Tuesday, Louisiana’s governor Jeff Landry signed into law a bill that makes the state the fourth in the country with nitrogen on its list of execution methods.
Alabama is also moving along with plans to execute a second prisoner using the gas. It has applied to the state’s supreme court for permission to send Alan Eugene Miller to the death chamber.
Like Smith, Miller had the rare experience of surviving an execution after the state called off an attempted lethal injection procedure in 2022 because it could not find a workable vein through which to pump the drugs.
Maya Foa, joint executive director of the human rights group Reprieve, said that the stance of the three nitrogen manufacturers brought them into line with almost all pharmaceutical companies producing drugs used in lethal injections. “Drug manufacturers don’t want their medicines diverted and misused in torturous executions and the makers of nitrogen gas share the same objection: they do not want their products to be used to kill,” she said.
Foa added: “States which claim that the lethal injection or gas inhalation are ‘humane’ methods of execution are merely seeking to mask what it means for a state to forcibly put someone to death. The makers of these products see through the lie and naturally want nothing to do with it.”
