Judge Blocks Nitrogen Hypoxia Execution in Alabama

A federal judge has prohibited Alabama from executing a death row inmate using nitrogen hypoxia. This reverses a prior opinion deeming the execution method as unconstitutionally cruel. The recent decision permanently restricts the state from executing Jeffrey Lee, 49, with nitrogen gas. Lee was set to face execution on Thursday.

Lee has been on death row in Alabama for over twenty years following his conviction for a double murder in 1998. Prosecutors allege he fatally shot Jimmy Ellis, a store owner, and Elaine Thompson, an employee, during a robbery attempt, according to court documents.

Judicial Findings

U.S. District Judge Emily Marks declared that Alabama’s nitrogen gas protocol infringes on inmates’ rights under the Eighth Amendment, which safeguards against cruel and unusual punishment. This follows an appellate court’s reversal of Marks’ earlier ruling, which had upheld the method’s constitutionality.

Marks stated, “Lee has shown by a preponderance of evidence that the Protocol constitutes cruel and unusual punishment,” citing the appeals court opinion from Monday. The court’s decision came after an April bench trial, which was the first to evaluate Alabama’s nitrogen hypoxia protocol’s constitutionality.

During the trial, experts and witnesses testified. The court concluded that inmates subjected to nitrogen gas could endure “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort” before death by asphyxiation, based on evidence presented.

Challenge to Execution Methods

The ruling represents a pivotal moment for challenges to capital punishment in Alabama, which has faced ongoing legal disputes since initiating executions by nitrogen hypoxia in 2024. Meeting the legal burden of proof in these cases has proved challenging for inmates and their legal representatives.

Protesters gathered outside the Capitol in Montgomery, Alabama, to oppose the execution. To argue an execution method violates the Eighth Amendment, the Supreme Court requires inmates to prove a method poses “a substantial risk” of severe pain and to suggest an alternative method.

Lee proposed a firing squad as an alternative. Marks indicated this method “is feasible, readily implemented, and significantly reduces the substantial risk of serious harm.” While a firing squad isn’t authorized in Alabama, where executions are conducted via lethal injection, nitrogen hypoxia, or electrocution, Marks noted the state “failed to articulate a legitimate penological reason” against its adoption.

State Response and Future Actions

Alabama Attorney General Steve Marshall’s office has plans to appeal Marks’ decision, as per court records. Despite criticism, the state denies that the nitrogen gas method causes cruel or unusual suffering.

Jeffrey Lee would have marked the ninth U.S. execution by nitrogen hypoxia, and the eighth in Alabama. Louisiana has also used this method for one execution. The issue of the nitrogen gas execution protocol’s constitutionality may proceed to the U.S. Supreme Court, which has never found a method of capital punishment unconstitutional.