Nebraska Senator introduces bill to make nitrogen asphyxiation a legal method of execution

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A Nebraska lawmaker has introduced a bill to add asphyxiation by nitrogen to the state's method of carrying out the death penalty, even as Alabama officials await a judge’s ruling on a request to block its plans to become the nation’s first state to carry out an execution by nitrogen gas.

Nebraska’s current sole method of execution is lethal injection. The bill introduced Thursday would add the nitrogen method, in which a mask that fits tightly over the nose and mouth would deliver pure nitrogen to a death row inmate, who would die of hypoxia — or a lack of oxygen to tissue and cells.

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The bill, introduced by state Sen. Loren Lippincott of Central City, would leave the decision of which method to use up to prison officials. Lippincott, a Republican in the officially nonpartisan Legislature, said he brought the bill at the suggestion of one of his constituents.

"We know that the death penalty is the law of the land in Nebraska," he said. "It's the will of the people. I introduced this as a way to do the death penalty humanely."

If passed, the measure would make Nebraska the fourth state to switch to death by nitrogen gas asphyxiation. The others are Alabama, Oklahoma and Mississippi, although the method has never been used in the U.S. to put an inmate to death.

Nebraska state Sen. Loren Lippincott sits at his desk in the Nebraska State Capitol, Jan. 5, 2024. He introduced a bill to add asphyxiation by nitrogen to the state's method of carrying out the death penalty. (AP Photo/Margery Beck)

Alabama is seeking to become the first and has set an execution date of Jan. 25 for Kenneth Eugene Smith, convicted in the 1988 murder-for-hire slaying of a woman. A federal judge is scheduled to decide before then whether to block the planned execution after Smith's lawyers argued that the method could violate the constitutional provision against cruel and unusual punishment, likening the untested method to human experimentation. They also argued that if the mask fails to seal properly, it could allow air to mix with the nitrogen, which could prolong the execution and possibly cause Smith pain.

Lippincott is not bothered by the court challenge facing Alabama officials over the protocol. "Everything gets challenged in court," he said Friday.

He is also certain a death by nitrogen hypoxia would be painless. A former Air Force and Delta Airlines pilot, Lippincott said he experienced altitude hypoxia simulation as part of his training, and he recalled it to be a painless experience.

"For me, it was a sensation of being sleepy and a warm feeling," he said. "Basically, you just go to sleep."

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It's too early to know whether the bill has a chance of passing. It has not been prioritized, which would give it more of a chance of advancing from committee, but it still could be before the Feb. 14 deadline. And while it has 17 co-signers, lawmakers are in a "short" 60-day session this year and have already introduced more than 200 bills in the first three days.

It's clear there is at least some opposition. Progressive Omaha Sen. Megan Hunt offered a tongue-in-cheek amendment to the bill Friday that would give state prison officials the power to determine whether death row inmates are executed by lethal injection or a firing squad "composed of all members of the Legislature."

An annual report on capital punishment released late last year by the Washington, D.C.-based Death Penalty Information Center said more Americans now believe the death penalty is being administered unfairly.

Nebraska has a long and chaotic history with the death penalty. The Legislature abolished it in 2015, overriding then-Gov. Pete Ricketts' veto to do so. Nebraska voters reinstated the death penalty the next year through a ballot initiative heavily bankrolled by Ricketts, who is a multi-millionaire and currently a U.S. senator for Nebraska.

Nebraska rarely carries out executions, having put only four people to death since 1976. It's last was in 2018 with the execution of Carey Dean Moore for killing two cabdrivers in Omaha in 1979.

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Nebraska currently lacks the drugs it needs to carry out lethal injection, the state Department of Correctional Services confirmed Friday. Like most states with the death penalty, Nebraska has struggled for years to obtain the drugs used to execute inmates because most manufacturers of the drugs now refuse to openly supply them.

In 2020, Ricketts vetoed a bill that would have prohibited prison officials from blocking the view of execution witnesses before the condemned inmate is declared dead. The bill was introduced after prison officials closed the witness viewing curtain for 14 minutes during the 2018 execution of Moore, which prevented members of the media from seeing the full process. Critics have said that prevented the public from knowing whether something went wrong with Moore’s execution.

Nebraska currently has 12 men on death row.