MONTGOMERY, Ala. – In a pivotal decision on Thursday, a federal judge ruled that using nitrogen gas for executions does not breach the constitutional prohibition against cruel and unusual punishment, countering an Alabama inmate’s assertion that it induces excessive suffering.
This landmark ruling followed the nation’s first bench trial focused on the constitutionality of this execution method, which has already been employed to execute eight individuals—seven in Alabama and one in Louisiana. The decision allows Alabama and other states to persist with this execution technique, dealing a blow to opponents who had hoped a comprehensive review of Alabama’s procedures would cease its application.
First implemented in 2024, this execution method involves affixing a respirator to the condemned individual and substituting their breathable air with pure nitrogen gas, leading to death by oxygen deprivation. The legal challenge was initiated last year by death row inmate Jeffery Lee. At 58, Lee is slated to face execution via nitrogen gas on June 11 at a prison in southern Alabama.
U.S. District Judge Emily C. Marks noted, “While Lee demonstrates that nitrogen hypoxia results in some suffering, he fails to prove that the procedure is cruel and unusual under the Eighth Amendment.”
The state and Lee’s lawyers disagreed on the duration of consciousness during a nitrogen gas execution. Marks indicated that evidence suggests Alabama’s procedure “likely induces severe air hunger—the most intense form of respiratory distress—for one to three minutes,” but this does not constitute a constitutional infringement.
Lee’s legal team has signaled their intention to appeal the ruling, as stated in court documents.
The Alabama attorney general praised the judge’s decision.
“After the first full trial on nitrogen hypoxia in the entire country, the district court found it to be constitutional. The district court considered all the evidence and concluded that nitrogen hypoxia is not cruel and unusual, affirming that the question of capital punishment belongs to the people and their representatives, not the courts, to resolve,” Alabama Attorney General Steve Marshall said.
Inmates executed by nitrogen gas have displayed various levels of shaking during the executions, and lawyers for the state and inmates have disagreed on whether those are involuntary or a sign of suffering. Alabama’s last nitrogen gas execution took more than 30 minutes to complete.
Marks noted that Lee faced a high legal bar because the U.S. Supreme Court has yet to find a state’s method of execution qualifies as cruel and unusual.
Five states have authorized nitrogen gas as an execution method, according to the Death Penalty Information Center, although only two states have used it.
Lee was convicted of capital murder for killing Ellis and Thompson on Dec. 12, 1998, near the small town of Orrville, Alabama. Prosecutors said Lee entered a pawn shop with a sawed-off shotgun and fatally shot Jimmy Ellis, the owner of the store, and Elaine 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.
Lee’s legal team did not issue an immediate comment on the decision.
“The real torture of the death penalty is in the decades of waiting. With what we know about each of the available methods of being killed in Alabama or in the U.S., I can’t imagine anyone choosing conscious suffocation,” said Abraham Bonowitz, executive director of Death Penalty Action, a group that opposes the death penalty.
He added that Lee would not face the death penalty if sentenced today because judicial override has been abolished.
