Lawmakers could consider nitrogen hypoxia for executions amid trouble sourcing drugs

Now that Gov. Mike DeWine has given a reprieve in two death penalty cases, state lawmakers could give new consideration to House Bill 36 to give the state another execution method.

The measure, sponsored by state Reps. Brian Stewart, R-Ashville, and Phil Plummer, R-Dayton, would permit the use of nitrogen hypoxia for executions, a move that comes amid a nationwide “shortage” of the lethal drugs they need to carry out executions. Inmates in Ohio spend an average of 22 years on Death Row, and the Buckeye State last executed an inmate in July 2018.

“This unofficial moratorium is purportedly due to an inability to obtain the drugs needed for lethal injection,” Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, said in prepared testimony to the House Judiciary Committee. “Since 2018, more than a dozen states and the federal government have carried out more than 100 executions, the vast majority by lethal injection.

“…Execution by nitrogen hypoxia is a method that has been adopted by several other states in recent years and is currently under consideration by several others,” Tobin added. “Defense lawyers have argued in filings in ongoing litigation in federal court over Ohio’s death penalty protocol that nitrogen hypoxia should be adopted as an alternative method of execution in Ohio.”

Last week, the governor issued two reprieves of execution, citing the state’s ongoing trouble procuring the requisite drugs. The delay gives the inmates another three years on death row.

Antonio Franklin was scheduled to be executed on Feb. 11, 2026, and a new execution date was set for Feb. 15, 2029. James Trimble was scheduled to be executed on March 12, 2026, and a new execution date was set for March 14, 2029.

“The state isn’t enforcing the law,” Tobin said. “This is to the great detriment of the victims of these horrendous crimes, to their friends and loved ones who are forced to deal with delay after delay, to the communities where these tragedies occurred and to the public who expects that our laws will be enforced.”

Ohio Attorney General Dave Yost testified before the House Judiciary Committee and said the state’s costly capital-punishment system reflects “a dishonorable abdication of responsibility.” He contends lawmakers can change that by authorizing the use of nitrogen hypoxia for executions in Ohio.

“There are some who believe Ohio should abolish the death penalty,” Yost said in prepared testimony. “I am not among them, but that in and of itself can be a morally defensible policy position.

“No, the dishonor occurs in failing to keep our promises to the family members of the slain… our failure to keep our promises to the juries who sacrificed a piece of their lives to do their duty,” the state’s top law enforcement official added. “The government dishonors your constituents who served on those juries, who were forced to hear and see matters that would turn your stomach – graphic and disturbing details that no one should be forced to know about. The jurors were then required to carry the weight of a decision not merely of guilt, but of execution.”

There are 114 people on Death Row, including 42 who have no additional appeals, Yost said in his testimony. DeWine has granted 57 reprieves to 25 defendants since taking office, Yost added.

“To be sure, he has an unfettered right to grant clemency should he wish,” the attorney general said in his testimony. “But he has not done so, nor has he asked this General Assembly to repeal the capital punishment law he helped author.”

Additionally, Tobin said in testimony that the measure, which restores confidentiality provisions for the execution drug manufacturers, suppliers and transporters, “proposes a way out of this morass.”

“The bill will give those on death row the ability to choose to be executed by either lethal injection or nitrogen hypoxia,” Tobin said. “If lethal injection is unavailable then the default method of execution would be nitrogen hypoxia.”