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In a significant legal development, a federal judge in Montgomery, Alabama, has permanently halted the state’s plan to execute an inmate using nitrogen gas, citing it as a violation of the U.S. Constitution’s prohibition against cruel and unusual punishment.
U.S. District Judge Emily Marks handed down her decision shortly after an appeals court overturned her earlier ruling that supported the constitutionality of the method. Judge Marks has consequently barred the state from executing Jeffrey Lee, aged 49, using nitrogen gas, just days before his scheduled execution.
This ruling temporarily halts Alabama’s push to implement the contentious execution method it has supported since 2024. However, the matter appears poised to escalate to the U.S. Supreme Court, which has yet to deem any state’s execution procedure unconstitutional.
The office of Alabama Attorney General Steve Marshall has filed an appeal against the ruling, as stated in a court document released Tuesday evening. The Attorney General’s office has not provided an immediate public statement, nor has the legal team representing Lee commented on the matter.
In her judgment, Marks noted that the appeals court identified a “substantial risk of serious harm” associated with the proposed method. She also concluded that the state could feasibly adopt Lee’s suggested alternative, execution by firing squad, which inmates must propose when contesting execution methods.
“Therefore, Lee has shown by a preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment,” Marks wrote.
Marks wrote that her order only blocks the state from executing Lee by nitrogen gas. She noted the state has two other authorized execution methods, lethal injection and the electric chair. She said Lee is “not entitled to an injunction barring the state from executing him using one of those methods.”
Alabama in 2024 began using nitrogen gas to carry out some executions. The execution method involves strapping a respirator to the person’s face and replacing breathable air with pure nitrogen gas, causing death from lack of oxygen. Nitrogen has been used in eight executions in the United States — seven times in Alabama and once in Louisiana. Lee was scheduled to be the ninth person executed with nitrogen.
A three-judge panel from the 11th U.S. Circuit Court of Appeals on Monday set the stage for Tuesday’s ruling. The court said the three minutes that it could take for an inmate to lose awareness is an “intolerable” time frame, “given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.”
The decision was welcomed by death penalty opponents and critics of the controversial execution method.
“Three minutes of conscious suffocation is torturous. If that doesn’t violate the constitution, let alone international law, nothing would,” said Bernard Harcourt, a professor at Columbia University Law School. Harcourt represents one of several other Alabama inmates challenging the method as unconstitutional.
The Rev. Jeff Hood, who served as spiritual adviser at two nitrogen execution, said, “I pray that we are witnessing the collapse of this horrific method nationwide.”
Alabama has maintained that the method is constitutional.
In her 26-page ruling, Marks noted the constant litigation over execution methods.
“Were Alabama to adopt firing squad as a method of execution, that method would likely be challenged as well. Indeed, there is likely no method — no matter how humane — that would be immune to constitutional challenge. But the Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality,” Marks wrote.
Lee is currently housed at Holman Correctional Facility in Atmore. He was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson while robbing a pawnshop on Dec. 12, 1998. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off shotgun and shot Ellis, the owner of the store, and Thompson, a store employee.
A jury voted 7-5 that Lee should receive a sentence of life imprisonment. However, a judge overrode that recommendation and sentenced Lee to death. Alabama in 2017 ended the practice of judicial override and no longer allows a judge to disregard a jury’s sentencing decision in death penalty cases.
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