House Judiciary Committee advances bill authorizing nitrogen hypoxia as execution method

The House Judiciary Committee voted to advance House Bill 1489, a proposal that would add nitrogen hypoxia as an authorized method of execution in Arkansas, after extended testimony and a roll-call vote in committee.

Representative Jeff Wardlaw (R-94), who sponsored the bill, told the committee he and others approached the attorney general’s office seeking options after the state has been unable to obtain drugs commonly used for lethal injection. “This is probably the hardest bill I've ever run in my career,” Wardlaw said, arguing nitrogen is “readily available,” less expensive than injectable drugs and has been used by other states in statutes or practice.

The bill drew sustained questioning from committee members about whether nitrogen hypoxia is humane, how executions using the method would be carried out, what grade of nitrogen would be required and how the Department of Corrections (ADC) would handle protocols and public disclosure. Dylan Jacobs, deputy solicitor general in the Arkansas Attorney General’s Office, told the committee that the primary practical constraint for the state has been the lack of availability of drugs used in lethal injection protocols and that Alabama has conducted executions using nitrogen hypoxia. He said federal and state litigation has considered Alabama’s experience and courts have found that nitrogen hypoxia can cause unconsciousness within minutes.

Toni Ryle, chief counsel for the Arkansas Department of Corrections, testified the department “does not have a position on the bill” but would implement an enacted law and develop protocols as required. Ryle also told the committee that directives setting operational details would be promulgated by the secretary or ADC director and that those directives are exempt from disclosure under current practice, a point that drew further concern about transparency from several members and witnesses.

Opponents told the committee the bill is constitutionally and ethically problematic. Jeff Rosenzweig, representing the Arkansas Association of Defense Lawyers, said the bill lacks the detailed statutory guidance that Arkansas courts have required in past litigation and warned it would invite further legal challenges. “It does not give criteria as to the level or grade of gas,” Rosenzweig said, and he argued those specifics should be in statute rather than left to the executive branch.

Reverend Dr. Jeff Hood, who said he witnessed the January 2024 nitrogen-hypoxia execution of Kenny Smith in Alabama, described that execution to the committee as prolonged and traumatic for witnesses. “The movements going every direction, the struggle to breathe … went on for at least 8 and a half minutes, if not closer to 10 minutes,” Hood said. Several medical and humane‑care concerns were raised by faith leaders and criminal‑justice reform advocates, including Sarah Moore, executive director of the Arkansas Justice Reform Coalition, and Reverend Britney Still, who called the method “torture” and cited professional guidelines that warn against using nitrogen hypoxia for animal euthanasia.

Committee members pressed about sourcing and purity of nitrogen. Representative Collins asked whether industrial-grade rather than medical-grade nitrogen would be used; the attorney general’s office said ADC would decide sourcing in protocols. Representative McCullough and others asked whether the bill should require independent medical monitoring and public access to data about executions; witnesses and staff said current statutory provisions and practices include privacy protections to shield execution team identities and that the department would set monitoring protocols.

A number of legislators raised separation-of-powers concerns tied to prior Arkansas court decisions. Counsel and witnesses referenced two Arkansas Supreme Court rulings discussed in the hearing record: Hobbs v. Jones (2012), a separation-of-powers decision, and a later 2015 decision (cited in testimony as Hobbs v. McGehee, 458 S.W.3d 707) that had upheld a subsequently amended execution statute. Rosenzweig told the committee he believes the current bill risks reverting to the problems identified in the 2012 decision because it lacks statutory criteria for the execution method.

Public testimony also included Paul Calvert, who offered technical observations about suffocation and air displacement based on personal experience and study; Calvert said a standard cylinder of gas released into a large hearing room would be too dilute to affect others in the room and repeated that witnessing an execution would be distressing regardless of method.

The committee voted to pass the bill from committee on a roll call. The roll-call in the transcript records several yes and no votes by name (see action record). The motion passed and committee leadership announced the bill’s passage in committee.