At a press conference Jan. 30, Ohio Attorney General Dave Yost and State Representatives Phil Plummer and Brian Stewart, all Republican, introduced a bill that would make nitrogen gas a legal form of execution. This comes after the execution of Kenneth Smith in Alabama, which was the first-ever case of the death penalty by nitrous hypoxia — something previously legal in Alabama, Oklahoma, and Mississippi, but never before done.
Currently, lethal injection is the only legal form of execution in Ohio, and there have been no executions since 2018. Governor Mike DeWine claimed at the time this was due to lack of availability. In 2020, he declared that lethal injection was “no longer an option” and caused “severe pain and needless suffering.” In 2020, NPR reviewed autopsy reports of over 200 cases of death by lethal injection between 1990 and 2019 and found evidence of pulmonary edema, a buildup of fluid in the lungs that induces a sensation of drowning or suffocation, in 84 percent of cases.
Nitrous gas, on the other hand, is widely available, easy to make, and, according to the lawmakers, more humane than lethal injection. The law allows inmates to choose between lethal injection and nitrous gas, but nitrous gas would be used if lethal injection is unavailable.
“There are crimes that are so heinous, that are so against basic humanity, that they deserve the ultimate punishment,” Yost told the press.
Yost emphasized the responsibility the state has to the families of victims.
“If we wish to break the promises that we made to the families of all these victims over all these years…then we owe it to our society, and to all those that are involved to own our decision, to change our minds,” Yost said.
It is important to unpack the case of Kenneth Smith in order to fully understand this law. Kenneth Smith was a convicted murderer whose attempted execution in 2022 was botched when they couldn’t find a vein. This January, he faced execution again, where a mask placed on his face administered 100% nitrogen, depriving him of oxygen until he suffocated. State officials claimed that it would take only a few seconds for Smith to lose consciousness and only a few minutes for him to die. In fact, the whole process took 22 minutes. The Associated Press reported that “for at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints.” Experts have since called the execution “inhumane.”
The family of the victim of Smith’s crime, Elizabeth Sennett, have since spoken to the press. The day was “bittersweet” for them.
“Nothing happened here today that’s going to bring Mom back,” Sennett’s son told the press. “We’re glad this day is over.”
While Sennett’s family expressed mixed feelings, many families reject the notion that the death penalty helps them heal. A study from the University of Minnesota found that only 2.5 percent of families reported feeling closure after an execution, while 20.1 percent did not. For many families, capital punishment just drags out the painfulness of the legal battle. Nowhere does the bill propose any support systems for victims.
Despite the evidence of cruelty, the execution was seen by Alabama, and these lawmakers, as a success. While nitrous hypoxia may be marketed to Ohioans as a humane way to bring justice to families, there is no evidence for either of these claims. Yost is a known advocate of the death penalty and has expressed frustration with DeWine’s claim of lack of access to lethal injection. In the press conference, he questioned “whether it’s actually a[n] impossibility to find those drugs if all the other states and the federal government are able to do so.” The passage of this bill would allow the government to churn out the executions that have for years been at an impasse, at least at the rate that any state “churns out” executions. Many stay on death row for decades, living a life defined by dread.
Ohio currently has 118 people on death row, according to a report from the Department of Rehabilitation and Correction, many of whom may face an upcoming execution date if this bill is passed. As of 2022, 78 of those Ohioans are Black, despite making up only 13 percent of the state’s population, as found by the ACLU. The likelihood that one will be sentenced to the death penalty is often racially dependent. Ohioans to Stop Executions found that “more than 70 percent of the people on Ohio’s death row are there for the murder of a white person, even though more than half of all homicide victims are black.” This means that someone is twice as likely to receive capital punishment for killing a white person than a Black person. It is hard to argue for justice through the death penalty when there is no justice in who is sentenced.
A recent poll by the No Death Penalty Ohio coalition has found that over half of Ohioans support repealing the death penalty. This is relevant now more than ever in the last five years. The death penalty is a system proven to be inhumane, ineffective, and racially biased, yet Yost and the representatives are championing their bill as a way to keep justice rolling. They do not do this for Ohioans, and they do not do this for the victims’ families. Instead, it comes from a need to enforce a system that is broken. Yost told the press that he understands the moral weight of the death penalty, but it is “the law of the land.” Hearing him, you have to wonder if those words are the only thing he understands.
