Is nitrogen execution too 'gruesome' and 'cruel?' Louisiana is about to find out

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After Alabama carried out the country's first known execution by nitrogen gas last year, the state's attorney general delivered a message to other states: "Alabama has done it, and now so can you."

So far, that hasn't happened.

But Louisiana is set to perform its first execution by nitrogen gas Tuesday, after a volley of court decisions blocked and then paved the way for the execution, arguing by turns the method was cruel or humane.

A federal judge said the method could violate the Eighth Amendment’s prohibition against cruel and unusual punishment, citing witness accounts of the Alabama executions. But the U.S. 5th Circuit Court of Appeals on Friday ruled it could go forward.

Condemned to die Tuesday is Jessie Hoffman, 46, for the kidnapping, rape and murder of 28-year-old accounting executive Molly Elliott in 1996. Hoffman's attorney has pledged to appeal to the U.S. Supreme Court.

Alabama Attorney General Steve Marshall has described nitrogen hypoxia − oxygen deprivation causing suffocation − as "textbook," "humane and effective."

Alabama has executed four prisoners using this controversial method and lawmakers in several other states have proposed legislation that would add nitrogen gas to their roster of ways to kill their inmates as officials struggle to obtain drugs used for the country's primary method of execution, lethal injection.

Capital punishment experts say that while a handful of the 27 states that have the death penalty may actually adopt this method, it's unlikely to be widely used and the outcome of the Louisiana case might inform how other states may handle future legal challenges.

"I think the decision of these few states to introduce new methods of execution, including nitrogen gas, are out of line with what we've seen as a general trend to the country," said Megan Byrne, senior staff attorney at the American Civil Liberties Union's Capital Punishment Project.

Texas, Louisiana both halted executions: What's going on?

Nitrogen hypoxia faces multiple legal challenges

The 5th U.S. Circuit Court of Appeals, which rescinded Hoffman's reprieve, is arguably the most conservative appeals court in the nation and has become a testing ground for key causes. The U.S. Supreme Court has previously tried to rein in the News Orlean-based court but also allowed Alabama and other states to use the nitrogen method.

Alabama inmate David Phillip Wilson filed a lawsuit similar to Hoffman's last month claiming the state’s plan to execute him using nitrogen gas violates the Constitution’s prohibition of cruel and unusual punishment, citing the "torturous" execution of Kenneth Eugene Smith in January 2024.

Witness accounts from his and other Alabama executions "describe suffering, including conscious terror for several minutes, shaking, gasping, and other evidence of distress." Chief District Judge Shelly Dick cited those accounts when delaying Hoffman's execution by nitrogen in Louisiana.

Wilson's case is pending. Smith's lawyers did not have the benefit of such evidence when opposing the then-untested method, Byrne said. Mounting evidence gathered from nitrogen gas executions could give challengers more firepower.

The Supreme Court’s three liberal justices previously criticized the majority’s decision to allow Smith's execution, arguing he should have had more time to pursue legal challenges and more needed to be known about the execution method.

The Constitution does not guarantee inmates a painless death. But Deborah Denno, a law professor at Fordham University, pointed out judges have deemed certain execution methods cruel and unusual punishment in the past.

The high courts in Georgia and Nebraska banned electrocution, and a circuit judge in South Carolina found both the firing squad and electric chair unconstitutional in 2022. But that decision was overturned, and the state carried out its first firing squad execution in modern history earlier this month.

The litigation over nitrogen gas might make other states hesitant to use it, Denno said. But she said death penalty states have remained "desperate" to execute their prisoners despite legal challenges and botched executions using many of the country's other methods.

"That desperation may outweigh this litigation that's going on here," she said.

Pushes for nitrogen gas executions stall

Nitrogen hypoxia is already an authorized method of execution in Mississippi and Oklahoma, although it has not been used. Steven Harpe, director of Oklahoma’s prison system, visited Alabama to study its nitrogen gas protocol and told The Associated Press he would "absolutely" want to use the method if possible, but the governor later told the outlet he had no plans to change the state's process.

A bill approving the use of the method is currently awaiting Arkansas Gov. Sarah Huckabee Sanders signature. When asked if Sanders plans to sign the bill, spokesperson Sam Dubke told Paste BN the governor "reviews legislation as it is introduced." Lawmakers in Ohio and Nebraska have reintroduced similar bills this year while another bill sponsored by Kansas' attorney general died in committee last year.

It's possible some of these bills may become law, particularly in Arkansas, but just because a state has an execution method on the books doesn't mean officials will use it, said Austin Sarat, a professor of jurisprudence and political science at Amherst College.

"The thing that we need to remember is that nitrogen hypoxia is authorized, but it's not the only method of execution available," he said.

Nitrogen executions could face long-term issues

States like Louisiana turned to nitrogen hypoxia or other alternative methods like the firing squad after struggling to procure drugs for lethal injection, but if those drugs were readily available, prison officials may not need to use nitrogen gas.

President Donald Trump issued an executive order in January directing the attorney general to help states secure the lethal drugs. Experts said it's not clear what the federal government could do because the primary issue is that pharmaceutical companies do not want to publicly provide drugs for lethal injections.

Though it does not yet appear to be an issue, states could eventually run into the same problem securing gas for executions. Multiple manufacturers of medical-grade nitrogen gas told The Guardian last year they would not allow their product to be used in capital punishment.

"Nitrogen gas is easier to get than lethal injection drugs, but that's only right now," Denno said.

Public support for the death penalty lags

Even as Trump has pledged to revive the death penalty, experts said the country is generally moving away from support for capital punishment. Several states that have the death penalty have not executed anyone in years, and a 2024 Gallup poll found support for the death penalty in the U.S. has fallen to 53%, a level not seen since the early 1970s.

Several experts and human rights organizations including the United Nations High Commissioner for Human Rights and Amnesty International criticized Smith's execution as particularly inhumane. Hoffman's execution has drawn protests from Jews Against Gassing Coalition, which says the method bears painful similarities to the gas chambers used during the Holocaust, CNN reported.

Sarat said nitrogen gas isn't likely to become the "safe, reliable and humane" execution method the country has long been searching for.

"Is it likely now to fix the problems of executions? I don't think so," he said. "So the story of a broken system, I think, is likely to continue to include methods of execution that will prove to be unreliable or will prove to be more gruesome than Americans can stomach."

Contributing: Maureen Groppe and Amanda Lee Myers