Attorneys argue for untried method of execution for Columbia murderer

An untried method of execution puts Missouri’s lethal injection once more under scrutiny.

Attorneys Brian Gaddy and Jeremy Weis say “nitrogen-induced hypoxia” would be a more “humane” method of execution for Columbia man Ernest Lee Johnson. Johnson was sentenced to death for the 1994 triple murder of Mabel Scruggs, Mary Bratcher and Fred Jones with a hammer as they closed the old Casey’s General Store at Ballenger Lane and Rice Road. Johnson’s case made it to the U.S. Supreme Court before justices sent it back down to an appellate court for review, just hours before Johnson’s execution in November 2015. That court also sent it back to the district level, claiming that court needed to give a final ruling on the matter before it had any authority over it.

The method of “nitrogen-induced hypoxia” involves placing a mask over the person’s head or face and filling it with nitrogen gas. The gas would then render the person unconscious within twenty seconds, an Oklahoma state commission reported in early 2015 on the method, and eventually kill them. That state passed a law in 2015 to allow for its use, after the attorney general there put a hold on all lethal injections.

Gaddy and Weis argue that scar tissue left behind from a 2008 brain surgery would cause “painful and severe seizures” when reacting to pentobarbital, the single drug used by Missouri in its lethal injections. Johnson became the second person in as many years to delay his execution due to medical concerns with pentobarbital. Russell Bucklew’s case is still set for a trial in federal court, after the U.S. Supreme Court stopped it. Bucklew’s lawyer said a vein condition would cause “excruciating” pain for him when mixed with the lethal drug.

Missouri Attorney General spokeswoman Nanci Gonder said the office was still reviewing the case. They will need to respond by August 22.

Of the 31 states that allow capital punishment, only four allow the use of lethal gas. Oklahoma became the fourth when in 2015 to passed the law for nitrogen-induced hypoxia. The state commission that studied it, and which Gaddy and Weis attached to their petition, called it a more “humane” method of execution. It requires little to no medical training, and can cause a “quick and painless death.” The inhalation of nitrogen would simply displace that of oxygen in this method, eventually leading to death.

However, no state has ever used it for capital punishment. The available research on it comes from 1961, according to the Oklahoma study, and other medical research comes from suicide data and high-altitude pilot work. Nitrogen, or “inert gas,” hypoxia is a preferred method of death to some “right-to-die” groups, since the process of falling unconscious and eventual death has little physical discomfort. Jet pilots also experience hypoxia at high altitudes, but the study notes the difference that a pilot’s lungs cannot absorb oxygen, rather than the lack of oxygen.

Rita Linhardt of Missourians for Alternatives to the Death Penalty said the new method is hardly humane.

“We don’t think any execution method is really humane, because it takes the life of the individual,” Linhardt said. “So maybe some methods might seem more humane, but really, the result is the same.

“It’s costly, it’s arbitrary, it’s prone to mistakes,” Linhardt said. “So, we want to focus on ending the system, not on the method of execution.”