Execution by Rapture? First Possible Execution by Nitrogen-Induced Hypoxia

by | September 26, 2018

Johnson v. Precythe, 2018 (8th Cir. 2018)

On February 12, 1994, Ernest Lee Johnson shot Fred Jones in the face, but the bullet didn’t kill him, so Johnson beat Jones to death with a hammer. Johnson then stabbed a woman, Mary Bratcher, 10 times, not fatally, and then proceeded to beat her to death with the same hammer. Johnson then decided to skip the shooting and stabbing when killing Mabel Scruggs, and instead solely beat her head with the hammer. Johnson was convicted and sentenced to death by lethal injection.

Nearly a quarter-century after the murders, just before his execution, Johnson sued the state. He alleged that pentobarbital, the intended execution drug, might cause a violent seizure and severely painful convulsions due to scarring from a brain tumor removal. Johnson claimed his death by injection would constitute cruel and unusual punishment and offered to die by nitrogen–induced hypoxia.

Nitrogen asphyxiation has never been used as a method of legal execution. Some proponents claim that it is a very pleasant experience, even mildly euphoric. It is physiologically similar to deep water divers’ experiences of the “rapture of the deep.” Those who have experienced dental work while inhaling nitrous oxide (“laughing gas”) have sensations described as similar to the onset of nitrogen asphyxiation.

The appellate court stayed Johnson’s execution to allow him time to pursue his claim that lethal injection by pentobarbital would be painful for him and that nitrogen asphyxiation would be a less risky and practical option. If he succeeds, Johnson would be the first in the nation to die by nitrogen-induced hypoxia. The country hasn’t seen an execution by gas since 1999 (cyanide gas, not nitrogen), or a death by firing squad since 2010 (still an option in some circumstances in Utah, and Utah inmate Michael Archuleta is on a course toward death by firing squad). This could be the next chapter in the U.S. Supreme Court’s death penalty jurisprudence.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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