Deputy Solicitor General Dylan Jacobs listens to Rep. Jeff Wardlaw, R-Hermitage, present House Bill 1489 to the House Judiciary Committee on Feb. 27, 2025. (Antoinette Grajeda/Arkansas Advocate)
A legislative panel voted 10-5 Thursday to advance a bill that would allow nitrogen gas to be used in Arkansas executions.
Democrats were the only members of the House Judiciary Committee to vote against House Bill 1489. Lead sponsor Rep. Jeff Wardlaw, R-Hermitage, said the bill stemmed from conversations with families following the death of four people in a mass shooting in Fordyce last summer.
“That young man has not been found guilty yet…so we’re not here because of that shooting or because of that particular incident,” Wardlaw said. “We’re here because those families were hurting after that incident.”
Families proposed a list of changes to Arkansas law regarding capital punishment, which Wardlaw said he took to the attorney general’s office. When he was told the recommendations couldn’t legally be implemented, Wardlaw said he decided the one thing he could do is change the method used in the death penalty so it could be carried out.
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Acquiring the necessary drugs for lethal injection has been a challenge for states like Arkansas, which last conducted executions in 2017 under former Gov. Asa Hutchinson. The state executed four men over the course of a week in advance of its drug supply expiring.
Twenty-six inmates are currently on death row in Arkansas, and a number of them are eligible for execution because they’ve exhausted their legal options, Wardlaw said. The Arkansas Department of Corrections has no position on the bill, he said.
Four states allow execution by nitrogen gas — Alabama, Louisiana, Mississippi and Oklahoma. Alabama became the first state to use the method last January and has since conducted three more executions, most recently on Feb. 6. This form of execution involves placing a mask over an inmate’s mouth and nose, and pumping it full of nitrogen gas.
“It’s readily available, it’s absolutely cheaper than the drugs, and it’s a very quick, humane death,” Wardlaw said.
Critics have challenged the humaneness of this method following reports that Kenneth Eugene Smith, the first person in the country executed by nitrogen gas, convulsed for minutes before his death. Alabama’s Department of Corrections commissioner said the death row inmate appeared to be holding his breath.
A lawsuit filed this month by an Alabama death row inmate challenging the constitutionality of nitrogen gas executions argued Smith’s execution was “a human experiment that officials botched miserably.”
Rev. Jeff Hood, a spiritual adviser who attended Smith’s execution, told the House Judiciary Committee Thursday that Smith’s face turned red, his body heaved back and forth on the gurney, and bodily fluids poured out of his mouth as Smith struggled for more than eight minutes.
“This is not easy for me to talk about, it was devastating,” Hood said. “Again, I’ve seen nine executions, I’ve seen eight lethal injections, and this was by far the most horrific thing I have ever seen.”
Prior to entering the chamber, Hood said he and the guards had to sign waivers agreeing not to hold the state of Alabama responsible if the gas leaked and killed them, so it was “a terrifying experience for everyone” before the execution even started.
“This is not about politics, this is not about the death penalty, this is about torture,” Hood said. “Nitrogen hypoxia is torture.”
Hood was one of five people who spoke against HB 1489. No one spoke in favor of the bill during public testimony.
Rep. Nicole Clowney, D-Fayetteville, thanked Wardlaw, who said it will likely be “the hardest bill” he’d ever run, for approaching the subject with the seriousness it deserved. However, Clowney said she had concerns about mistakes happening, noting that in 2020, tests revealed that the DNA on a murder weapon did not belong to Ledell Lee, one of the four Arkansans executed in 2017.
“As long as humans are responsible for these decisions, we will get it wrong sometimes,” she said. “I hate to put it this bluntly, but as long as the death penalty exists in Arkansas, we will kill innocent people.”
Rep. Andrew Collins, D-Little Rock, said he was concerned the bill didn’t have enough detail about this method of execution to make it “constitutionally sound.” Collins noted the law doesn’t specifically state that medical grade nitrogen must be used, for example, so if it becomes difficult to source, there’s nothing to prevent officials from using “an impure form” of the gas, which would make “what is already bad worse.”
Dylan Jacobs, deputy solicitor general for the Arkansas Attorney General’s office, said the exact protocol of the execution, including how to keep staff and witnesses safe, will be promulgated by the state Department of Corrections. Jacobs said it wasn’t necessary to include those specifics in the bill, which could tie the department’s hands to perform the execution in a particular way.
The bill advanced out of committee with only Republican support. It will next be considered by the full House.
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