Republican Attorney General Kris Kobach is asking lawmakers to broaden the method for execution to include a suffocating gas, which was just used for the first time in Alabama.
Kobach’s top deputy, Dan Burrows, introduced a bill Thursday that would add hypoxia – a medical term for insufficient oxygen – to lethal injection as a form of execution.
Alabama just became the first state to use hypoxia, executing an inmate who was put to death by inhaling nitrogen. It leads to death within minutes because of lack of oxygen.
“If Kansas is going to have a death penalty, it needs to be possible to implement it,” Kobach said in a statement.
“Because of difficulties in in acquiring the drugs, lethal injection is now limited. I have spoken directly with the Attorney General of Alabama, and he confirmed that the hypoxia method worked extremely well.”
The bill gives the state corrections secretary the discretion to decide what type of execution would be carried out.
The bill also gives the secretary the authority to decide how the procedures for carrying out an execution by hypoxia would be undertaken.
In the Alabama case, protocol called for putting a mask over the inmate’s head after which nitrogen gas is released. It’s been compared to putting plastic bag over someone’s head.
Supporters say nitrogen hypoxia is quick and painless, while critics say it’s tantamount to torture.
The Associated Press reported that it took 22 minutes – between the opening and closing of the curtains to the viewing room – to execute Kenneth Euqene Smith in Alabama.
The AP reported that Smith appeared conscious for several minutes, but for at least two minutes, “he appeared to shake and writhe on the gurney, sometimes pulling against the restraints.”
The United Nations Human Rights Office condemned the method used to execute Smith, who became the first death-row inmate known to die by nitrogen gas in Alabama.
“The use, for the first time in humans and on an experimental basis, of a method of execution that has been shown to cause suffering in animals is simply outrageous,” the U.N. said in a statement after the execution.
“Instead of the ‘swift, painless and humane’ death predicted by authorities, who defended the use of the method despite the lack of scientific evidence, Smith reportedly took over 20 minutes to die,” the U.N. said.
Alabama Attorney General Steve Marshall proclaimed that the 2018 law authorizing an execution by nitrogen hypoxia was effective.
“The Federal District Court that considered Smith’s challenge to the method found ‘there is simply not enough evidence to find with any degree of certainty or likelihood that execution by nitrogen hypoxia…is substantially likely to cause Smith super-added pain,” Marshall said after the execution.
“And tonight’s events show that the dire predictions of activists and the media were as speculative as Smith’s claims,” he said.
Republican state Rep. Stephen Owens, chair of the House corrections committee, said the method proposed by the attorney general should be considered.
“I do believe if we’re going to have a death penalty, we need to have an effective way to accomplish that,” Owens said in an interview.
“We have a death penalty in Kansas. We have people on death row,” he said. “If we’re going to follow through with that, then we need a humane method to do so.
“If you can’t even get the drugs to do it the other way – the way it’s been – then we need to look at a mechanism by which we to accomplish that.”
A hearing is already set before Owens’ committee for Thursday.
Death by hypoxia using nitrogen gas is believed to have its origins in Oklahoma where it was proposed by a lawmaker after the state was criticized for fumbling execution attempts using lethal injection.
An assistant professor of criminology at East Central University in Ada, Oklahoma, coauthored a white paper that recommended that hypoxia induced by the inhalation
of nitrogen be offered as an alternative method of capital punishment in Oklahoma.
The report concluded that induced hypoxia through nitrogen inhalation would be a humane method to carry out a death sentence.
Joel Zivot, an associate professor of anesthesiology at Emory University, has been a witness for death-row prisoners in a number of states in their constitutional challenges to the lethal injection process.
Zivot said he thinks states are looking for alternatives to lethal injection either because they have trouble obtaining the pharmaceuticals for the execution or their corrections staffs don’t have the skills needed to carry out the technique.
“I think there’s a push now to find an alternative because there’s a feeling that lethal injection is imperiled in some way,” he said.
“The promise of nitrogen gas is that it’s easy to get, you don’t need an intravenous and it seems to cause death,” he said.
Zivot said he was amazed by the Alabama attorney general’s reaction to the gas-induced execution.
“I thought it would be terrible and it was terrible,” he said. “It was terrible by all the people who were watching it except the attorney general who thought it was fine.”
Over the years, there have been many different methods of execution, whether it was the electric chair, gas, hanging or firing squad.
“The reason why these methods come and go is because of public taste or in this case lethal injection because of other types of factors that’s making it harder to do.”
Donna Schneweis, chair of the Kansas Coalition against the Death Penalty, used the introduction of the bill to call for abolishing executions in Kansas.
“The method of execution in Kansas is not the issue,” Schneweis said in a statement.
“The existence of the Kansas death penalty itself is the issue,” she said.
“Kansas continues to waste taxpayer dollars, harm victim families and prison staff, risk the lives of the innocent, and violate the morals of many Kansans for a public policy built on vengeance,” she said.
“The time to end the Kansas death penalty is now.”
The state currently has nine people on death row.
The state’s last execution was in 1965 for two AWOL soldiers put to death for killing a railroad worker during a cross-country murder spree.
Five years ago, a Kansas House committee considered a bill abolishing the death penalty.
The House corrections committee voted 7-6 against passing the bill, which would have ended the death penalty for crimes committed on or after July 1 of 2019.
The committee deadlocked at 6-6 with the chairman, the late Rep. Russ Jennings of Lakin, breaking the tie against the bill.
Jennings said his vote reflected the view of the voters in his district.
