A federal judge has permanently blocked Alabama from executing death row inmate Jeffrey Lee using nitrogen gas, ruling that the method violates constitutional protections against cruel and unusual punishment. Lee's execution, which had been scheduled for Thursday, has been delayed as a result.
U.S. District Judge Emily C. Marks issued the 26-page ruling on Tuesday, finding that nitrogen hypoxia presents an unconstitutional risk of serious harm. The decision reverses her own earlier ruling from May 29, when she had initially allowed the execution to proceed based on testimony from three medical experts.
The case has moved through the courts rapidly. In late May, Marks had concluded that the anxiety caused by "air hunger" during a nitrogen gas execution did not constitute an unconstitutional level of pain. However, on June 8, a three-judge panel from the 11th Circuit Court of Appeals overturned her decision, writing that "Alabama's nitrogen hypoxia protocol presents a 'substantial risk of serious harm' – severe pain over and above death itself." The appeals court ordered Marks to reconsider whether Lee should be allowed to choose firing squad as an alternative execution method.
In her latest ruling, Marks acknowledged that Lee remains entitled to face the death penalty but rejected nitrogen gas as the means. She stated that Alabama can pursue two other authorized execution methods: lethal injection or the electric chair. Marks also addressed the possibility of firing squad, noting that any execution method could face legal challenges and that the Constitution does not guarantee a painless death.
"Litigation is a constant in death penalty cases," Marks wrote. "But the constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain."
Alabama became the first state to carry out a nitrogen hypoxia execution in 2024, but the method has faced repeated legal challenges. Concerns about the execution technique intensified after journalist Lee Hedgepeth witnessed Kenneth Eugene Smith's execution by nitrogen gas, which took 22 minutes. Hedgepeth told the BBC that he had attended four previous executions but had never seen a condemned inmate react with such violent thrashing.
A spokesman for Alabama Attorney General Steve Marshall said the state plans to appeal the judge's decision. The case is likely to reach the U.S. Supreme Court, which has previously allowed nitrogen executions to proceed.
Lee was convicted in 2000 for the 1998 murders of Jimmy Ellis and Elaine Thompson. A jury had recommended life without parole, but a judge overrode that recommendation and imposed a death sentence. Lee's legal team has asked Alabama Governor Kay Ivey to grant him clemency and end judicial override retroactively, though such relief remains unlikely.