Judge blocks Alabama's nitrogen gas execution method, rules it is unconstitutionally cruel

A federal judge has permanently barred Alabama from executing death row inmate Jeffrey Lee using nitrogen gas, ruling that the method violates the U.S. Constitution's ban on cruel and unusual punishment.

U.S. District Judge Emily C. Marks issued the ruling Tuesday, just hours after an appeals court reversed her earlier finding that the execution method was constitutional. The decision blocks Alabama from using nitrogen hypoxia to carry out Lee's scheduled execution on Thursday.

Lee, 49, has been on death row for the 1998 murders of Jimmy Ellis and Elaine Thompson, who were shot during a robbery at Jimmy's Pawnshop in Alabama. Prosecutors said Lee entered the store with a sawed-off shotgun and killed Ellis, the owner, and Thompson, an employee. A jury voted 7-5 in favor of a life sentence, but the presiding judge overrode that recommendation and imposed the death penalty. Alabama has since eliminated the practice of judicial override in capital cases.

In her order, Marks cited an 11th U.S. Circuit Court of Appeals decision from Monday, which described the nitrogen hypoxia protocol as carrying "a substantial risk of serious harm." A three-judge panel on the appeals court found that the estimated three minutes it could take for an inmate to lose consciousness represented an "intolerable" period, "given the suffering that would likely take place under Alabama's nitrogen hypoxia protocol."

"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.

The judge also ruled that Alabama could instead carry out Lee's sentence using his preferred alternative method, the firing squad. Under legal precedent, inmates challenging an execution method must propose an alternative that the state could feasibly adopt. Lee is not entitled to an injunction preventing the state from using its other two authorized methods: lethal injection or the electric chair, Marks wrote.

Alabama Attorney General Steve Marshall's office quickly filed an appeal, according to court records. State officials have consistently maintained that nitrogen gas is a constitutional execution method. The case now appears headed toward the U.S. Supreme Court, which has never struck down a state's method of execution as unconstitutional.

In her ruling, Marks acknowledged the broader constitutional tension at play. "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," she wrote. "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."

Alabama pioneered the use of nitrogen gas for executions in January 2024, when Kenneth Eugene Smith became the first person in the country to be put to death by the method. Nitrogen hypoxia involves placing a respirator mask on the inmate and replacing breathable air with pure nitrogen, causing death through oxygen deprivation.

Since then, nitrogen gas has been used in eight executions nationwide: seven in Alabama and one in Louisiana. Lee would have been the ninth.

The method has drawn sharp criticism from legal scholars, medical experts, and opponents of the death penalty. Bernard Harcourt, a professor at Columbia University Law School who represents other Alabama inmates challenging nitrogen hypoxia, told The Associated Press: "Three minutes of conscious suffocation is torturous. If that doesn't violate the constitution, let alone international law, nothing would."

The Rev. Jeff Hood, who has served as a spiritual adviser at two Alabama nitrogen executions, welcomed Tuesday's ruling. "I pray that we are witnessing the collapse of this horrific method nationwide," he said.

Lee is being held at Holman Correctional Facility in Atmore, Alabama. The state has not indicated how it plans to proceed with his execution in light of the ruling.