OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 392 Bill Analysis
135th General Assembly
Click here for H.B. 392’s Fiscal Note
Version: As Introduced
Primary Sponsors: Reps. Stewart and Plummer
Effective date:
Nicholas A. Keller, Attorney
SUMMARY
Adds nitrogen hypoxia asphyxiation to the list of methods by which a sentence of death
may be executed and mandates nitrogen hypoxia asphyxiation under certain
circumstances.
Prohibits the disclosure of execution identifying information and makes execution
identifying information confidential and not subject to public disclosure.
DETAILED ANALYSIS
Background – execution of death sentence
Under current law, a death sentence must be executed by causing the application to the
person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of
drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or
drugs must be continued until the person is dead.1 Ohio has not executed a death sentence
since the July 2018 execution of Robert Van Hook. 2
Nitrogen hypoxia asphyxiation
Election of nitrogen hypoxia asphyxiation
The bill allows a person upon whom a death sentence was imposed to elect to have the
sentence executed by lethal injection or by nitrogen hypoxia. The choice must be made in
writing and must be submitted to the Director of Rehabilitation and Correction (DRC) one week
1 R.C. 2949.22(A).
2 2023 Ohio Capital Crimes Report, Ohio Attorney General Dave Yost, available at
https://www.ohioattorneygeneral.gov/2023CapitalCrimesReport
April 8, 2024
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before the court-ordered day of execution. If a person timely elects nitrogen hypoxia, the death
sentence must be executed by causing the application to the person of a lethal quantity of
nitrogen gas of sufficient dosage to quickly cause death. The application of nitrogen gas must
be continued until the person is dead. The warden of the correctional institution in which the
sentence is to be executed or another person selected by DRC must ensure that the death
sentence is executed.3
No election or election of lethal injection
If a person does not timely elect nitrogen hypoxia, does not elect either nitrogen
hypoxia or lethal injection, or elects lethal injection, the death sentence must be executed by
lethal injection pursuant to continuing law. However, if, at the time a death sentence is to be
executed, the death sentence cannot be executed by lethal injection, the death sentence must
be executed by nitrogen hypoxia as if the person had elected nitrogen hypoxia under the bill.4
Execution method determined to be unconstitutional
The bill requires execution of a sentence of death “by any different manner of execution
that has not been determined to be unconstitutional” if a person is sentenced to death and if
the execution of a death sentence by lethal injection or nitrogen hypoxia is found to be
unconstitutional any of the following:5
The Ohio Supreme Court, under the Ohio Constitution;
The United States Supreme Court, under the U.S. Constitution;
By the Ohio Supreme Court, under the Ohio Constitution or the U.S. Court of Appeals
with jurisdiction over Ohio, under the U.S. Constitution, if the U.S. Supreme Court
declines to review that judgment.
This is a departure from current law, which requires, if a death sentence by lethal injection is
declared to be unconstitutional, the death sentence must be executed by a different manner
prescribed by law on or after November 11, 2001.6
The bill prohibits a sentence of death from being reduced as a result of a determination
that a method of execution is declared unconstitutional under the Ohio Constitution or U.S.
Constitution and requires the death sentence to remain in force until the sentence can by
executed by any valid method of execution.7
3 R.C. 2949.22(B) with conforming change in R.C. 2949.25.
4 R.C. 2949.22(C).
5 R.C. 2949.22(E).
6 R.C. 2949.22(E).
7 R.C. 2949.22(F)
P a g e |2 H.B. 392
As Introduced
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The bill repeals a disclaimer in current law that states “No change in the law made by
the amendment to this section that took effect on October 1, 1993, or by [the amendment that
took effect on November 11, 2001] constitutes a declaration by or belief of the General
Assembly that execution of a death sentence by electrocution is a cruel and unusual
punishment proscribed by the Ohio Constitution or United States Constitution.”8
Disclosure of execution identifying information
The bill prohibits a person from recklessly disclosing “execution identifying information,”
except as provided under “Confidentiality,” below. A person who violates the prohibition is
guilty of the existing law offense of “disclosure of confidential information,” a fourth degree
misdemeanor.9 “Execution identifying information” is any record or information that directly
or indirectly reveals a name, residential or business address, residential or business telephone
number, day and month of birth, Social Security number, or professional qualifications of any
person who participates in or administers the execution of a death sentence [or]10 any person
that manufactures, compounds, imports, transports, distributes, prescribes, prepares,
administers, or otherwise supplies any drugs or combination of drugs, active pharmaceutical
ingredients, gas, or other material used in the execution of a death sentence, or any equipment
used to administer any drugs or combination of drugs, active pharmaceutical ingredients, gas,
or other material to any person during the execution of a death sentence.11
Confidentiality
Under the bill, information or a record in possession of a public office that contains
execution identifying information must be disclosed to the Ohio Ethics Commission for
purposes of confirming ethics and licensing compliance, but is otherwise confidential, privileged
under law, not subject to disclosure as a public record, is not subject to disclosure by or during
a judicial proceeding, inquiry or process, and is not subject to discovery, subpoena, or other
means of legal compulsion or disclosure to an entity.12
Current protections against the disclosure of execution identifying information are
narrower, do not include language covering gas or other material used in the execution of a
death sentence, and apply only to a specified 24-month period.13
8 R.C. 2949.22(D), repealed.
9 R.C. 2921.24(C).
10 A technical amendment may be needed due to a drafting error in this provision to correct the
sentence to read “administers the execution of a death sentence or any person that . . . .”
11 R.C. 2921.24(A) and 2949.221.
12 R.C. 2949.221.
13 R.C. 2949.221.
P a g e |3 H.B. 392
As Introduced
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Constitutional considerations
The bill offers a new method of carrying out a death sentence, allowing a person
sentenced to death to opt for nitrogen hypoxia instead of lethal injection. The Eighth
Amendment to the United States Constitution states, “excessive bail shall not be required, nor
excessive fines be imposed, nor cruel and unusual punishment be inflicted.” No method of
execution has yet been found to be per se “cruel and unusual” in violation of the Eighth
Amendment.
At present Alabama, Mississippi, and Oklahoma have laws that allow nitrogen hypoxia
to be used as a method of execution.14 On January 25, 2024, Alabama became the first state to
use this prior-to untested method in the execution of Kenneth Smith. Although Smith
challenged the use of nitrogen hypoxia, and the case was appealed up to the U.S. Supreme
Court, the Court did not rule on the claims related to whether nitrogen hypoxia was a
permitted method of execution.15
HISTORY
Action Date
Introduced 02-01-24
ANHB0392IN-135/ar
14 Code. Ala §15-18-82; Miss. Code §99-19-51; and 22 Okl. St. § 1014.
15 Smith v. Hamm, 601 U.S.___, 144 S.Ct. 414, 217 L.Ed.2d 431 (2024).
P a g e |4 H.B. 392
As Introduced
Statutes affected: As Introduced: 2921.24, 2949.22, 2949.221, 2949.25