Amid nationwide controversy surrounding lethal injection, Louisiana officials are recommending a way never before used in the United States to execute the condemned: death by nitrogen.
James LeBlanc, secretary of the Louisiana Department of Public Safety and Corrections, also wants state legislators to reconsider an execution-secrecy bill that was introduced but dropped during last year’s legislative session. The two recommendations were submitted to the state House of Representatives on Feb. 18, as part of a report mandated by a resolution passed last year. The report wraps up a six-month study by a committee tasked with finding the most humane way to administer the death penalty in Louisiana.
The recommendation for new legislation comes four months before a scheduled hearing on the constitutionality of the state’s method for executing prisoners.
Rep. Joseph P. Lopinto III, R-Metairie, said Monday, however, that the Legislature is unlikely to make any “substantial” changes to death-penalty protocols before next session.
“I haven’t read it completely to tell you whether its a good option or bad option,” Lopinto said about the report’s recommendation of nitrogen.
Lopinto is the Chairman of the Administration of Criminal Justice Committee, and sponsored the secrecy bill last session. On Monday, he said that his agenda is already full this session and wouldn’t be able to bring up such a bill.
“I don’t have any bills available for this year,” Lopinto said.
New method would deprive prisoner of oxygen
Now, the Department of Corrections says it’s found a way to avoid lethal-injection controversy altogether by administering something called nitrogen-induced hypoxia. Essentially, officials would suffocate inmates.
“In nitrogen induced hypoxia, there is no buildup of carbon dioxide in the bloodstream so the subject passes out when the blood oxygen falls too low,” reads the report issued by the Department of Corrections. “The research reviewed suggests that this method would be the most humane method and would not result in discomfort or cruel and unusual punishment to the subject.”
The corrections committee said a gas chamber wouldn’t be used. Instead, inmates would be fitted with a mask or oxygen tent, a device that covers only the neck and head of the person.
The report cited ongoing research about hypoxia, including a European Industrial Gases Association report on the hazards of oxygen depletion and a Slate article outlining current death-penalty trends.
“Research as to the best delivery method is ongoing,” officials added.
Oklahoma also is considering nitrogen-based executions, which have never been used in the United States.
Louisiana’s current protocol allows for a mix of the drugs midazolam and hydromorphone, which opponents say violates prisoners’ rights against cruel and unusual punishment. State officials also question whether they could find the supplies needed to inject death-row inmates with a different drug or combination of drugs.
Two years ago, Louisiana adopted a protocol using the drug pentobarbital. Like other states, however, Louisiana’s execution procedure changed as that lethal-injection drug expired or became scarce amid national shortages.
The lack of inventory forced corrections officials around the country to adopt what death penalty opponents call “experimental” practices that in some cases have resulted in drawn-out executions.
In Louisiana, shortages also forced corrections officials to seek unorthodox suppliers for their death-penalty drugs. In 2013, officials at least considered getting pentobarbital from a compounding pharmacy not licensed in the state of Louisiana. And last year officials turned to a local hospital to get midazolam as part of their new two-drug lethal injection protocol, saying the drug was for a patient.
Louisiana is one of 18 of 34 death penalty states that solely allows for lethal injection, after dropping electrocution in 1991. The other 16 states allow for additional methods such as hanging and firing squads. Only four allow for lethal gas — Arizona, California, Missouri and Wyoming.
The report did not explicitly call for the use of the currently allowed midazolam and hydromorphone. In July, state officials said they would reconsider that method following a wave of botched executions in Ohio, Oklahoma and Arizona, all of which used midazolam.
Pam Laborde, spokeswoman for the state’s Department of Corrections, made clear Monday that decisions about execution methods now rest in legislative hands.
“The report (and attachments) speaks for itself,” Laborde wrote in a statement. “The legislature will decide how it reviews the report.”
Officials: bring back the secrecy bill
Last year, Lopinto introduced a bill that would have reinstated electrocution in Louisiana. At the request of LeBlanc, Lopinto changed the language of the bill, asking to make secret details about executions.
The bill would have kept confidential the name, address and other identifying information “of any person or entity that manufactures, compounds, prescribes, dispenses, supplies or administers” execution drugs. It also would have allowed the state to buy drugs from out-of-state suppliers not licensed in Louisiana.
Lopinto’s bill sailed through the House and a Senate committee, but he dropped it without explanation. Now, LeBlanc, chairman of the committee that submitted February’s report, is recommending that legislators consider the bill once more.
If passed, the bill would better help Louisiana find pentobarbital or other drugs for use in execution, LeBlanc’s committee reported. That’s because suppliers have threatened to stop giving drugs to businesses who sell them to correctional agencies for use in lethal injection.
“Suppliers fear the backlash of bad publicity to their businesses if involved in providing the drugs to correctional agencies,” the report reads. “Such legislation would provide some security to those tasked to and involved in carrying out the state’s order to execute an individual as punishment for a qualifying crime.”
Other states, including Arizona, Georgia, Missouri and Oklahoma, have passed similar laws.
On Monday, Lopinto said that although he won’t introduce a secrecy bill this session, something needs to address the state’s execution issues.
“I do believe we need to fix it for the future,” he said. “We’re going to have continuous problems getting those kinds of narcotics.”
He added that no matter what, the current climate surrounding execution means the Department of Corrections would face legal battles in the future.
“Even if we change to nitrogen, it’s not like we’re not going to have a legal battle,” Lopinto said. “We still have a viable option in lethal injection. It’s the way it’s done in other states. We’ll have to consider it next year.”
Mercedes Montagnes, lawyer for death row inmate Christopher Sepulvado, called the report “substantial” and questioned how well Louisiana would be able to carry out an execution should the recommendations become law.
“This report makes clear that the State of Louisiana is not prepared to carry out an execution without substantial changes to the current protocol,” Montagnes said. “Further, as the State of Virginia recently agreed, we see no value in creating legislated secrecy which will only serve to cloud this already-convoluted process in more confusion.”
Supreme Court to consider lethal injection
In June, state officials and Sepulvado’s lawyers will meet to set a date for a trial determining whether the state’s method for executing prisoners is constitutional. The trial is connected to a lawsuit filed by Sepulvado, who was convicted of beating his stepson with a screwdriver and then submerging his body in scalding water.
Sepulvado has won several stays of execution in the past two years. He argues that the state’s method of lethal injection violates his constitutional protection against cruel and unusual punishment, and has sought to learn the exact procedure Louisiana will use to put him to death.
Several factors have changed since the trial was originally scheduled. For one, the state’s supply of midazolam expired in January. Secondly, the Supreme Court is assessing the use of midazolam in executions.
The nation’s highest court was prompted to consider the death penalty for the first time in eight years following controversy surrounding an April botched execution in Oklahoma. In that incident, a prisoner tried to rise from the gurney after his injections began. The prisoner was given midazolam.
The court is expected to hear the Oklahoma prisoners’ case in April. A final ruling could come as early as July.
The ruling could have far-reaching implications, and possibly restrict the use of midazolam nationwide.
Montagnes said it’s too early to know how the ruling will affect Sepulvado’s case, or future executions in Louisiana. In the meantime, all executions are on hold in Louisiana until a judge determines whether the state has a constitutional method for carrying out the death penalty.
“We welcome review by the Supreme Court of what has become a series of botched experiments in the lethal injection realm – obviously the Court is also troubled by the recent developments. We are happy the Court is taking this issue so seriously,” Montagnes said. “We also stress that each state has a particular set of facts that need to be fully evaluated before the State exercises its most extreme domestic power.”