Judge blocks nitrogen gas executions in Alabama, ruling the method is unconstitutional

A federal judge on Tuesday permanently blocked Alabama executing death row inmate Jeffrey Lee with nitrogen gas after finding that it violates the U.S. Constitution’s ban on cruel and unusual punishment.

U.S. District Judge Emily C. Marks handed down the ruling hours after an appeals court reversed her initial finding that the controversial execution method was constitutional. She permanently barred the state from using nitrogen gas to execute Jeffrey Lee, 49, who was scheduled to be put to death on Thursday.

The judge wrote that the appeals court found the method carried “a substantial risk of serious harm.” A three-judge panel from the 11th U.S. Circuit Court of Appeals on Monday 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.”

Marks also ruled that the state could change the form of execution to Lee’s preferred method, which is a firing squad. Inmates challenging execution methods must suggest an alternative method.

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“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’ order blocks only the state from executing Lee by nitrogen gas. 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 Attorney General Steve Marshall’s office is appealing the decision, according to a new court filing. Alabama officials have maintained that the method is constitutional.

The issue appears likely bound for the U.S. Supreme Court, which has never ruled a state’s execution method to be unconstitutional.

“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 in her ruling.

Alabama began using nitrogen gas for executions in January 2024, when convicted killer Kenneth Eugene Smith became the first person in the country to be executed using that method.

The execution method, which involves strapping a respirator onto the inmate’s face and replacing breathable air with pure nitrogen gas, causing death by lack of oxygen, has been criticized by opponents as inhumane and torturous.

“Three minutes of conscious suffocation is torturous. If that doesn’t violate the constitution, let alone international law, nothing would,” Bernard Harcourt, a professor at Columbia University Law School and who represents one of several other Alabama inmates challenging the method as unconstitutional, told The Associated Press.

Nitrogen has been used in eight executions in the U.S., with seven of them in Alabama and one in Louisiana. Lee was set to become the ninth person executed with nitrogen before Marks’ order.

Opponents of the death penalty and critics of the controversial execution method praised Marks’ ruling on Tuesday.

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“I pray that we are witnessing the collapse of this horrific method nationwide,” said the Rev. Jeff Hood, who served as spiritual adviser at two nitrogen executions.

Lee is being held at Holman Correctional Facility in Atmore for his conviction 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, who was the owner of the store, and Thompson, an employee at the business.

A jury voted 7-5 that Lee should be sentenced to life imprisonment, but a judge overrode that recommendation and sentenced him to death.

Alabama later ended the ability of a judge to disregard a jury’s sentencing decision in death penalty cases.

The Associated Press contributed to this report.