Federal Judge Blocks Nitrogen Gas Execution in Alabama

A federal judge has permanently blocked Alabama’s plan to execute death row inmate Jeffrey Lee using nitrogen gas, citing concerns that it violates the U.S. Constitution’s ban on cruel and unusual punishment.

U.S. District Judge Emily C. Marks made the ruling shortly after an appeals court reversed a previous decision that deemed the method constitutional. With Lee, 49, scheduled for execution on Thursday, Marks has prohibited the state from using nitrogen gas for this purpose.

In her ruling, Marks highlighted that the Court of Appeal identified a “substantial risk of serious harm” associated with the execution method. A three-judge panel from the 11th Circuit Court pointed out that the three minutes it reportedly takes for an inmate to lose consciousness is unacceptably long, especially considering the suffering involved in Alabama’s nitrogen hypoxia protocol.

The judge also indicated that the state could opt for a firing squad as an alternative, which Lee himself prefers. However, inmates who object to a method must propose another option.

Marks emphasized that the evidence overwhelmingly supports the claim that nitrogen execution constitutes cruel and unusual punishment, violating the Eighth Amendment.

While her order specifically blocks nitrogen gas executions, Alabama still has lethal injection and the electric chair as methods of execution. Marks noted that Lee is not entitled to prevent the state from executing him through these other means.

In response, Alabama Attorney General Steve Marshall’s office announced plans to appeal the ruling, asserting that their approach is constitutional.

The matter may reach the U.S. Supreme Court, which has yet to rule a state’s method of execution unconstitutional. Marks mentioned that if Alabama goes with the firing squad, that method may face challenges too. A reality check lies in the fact that the Constitution doesn’t guarantee a painless death, and all methods carry a risk of suffering.

Alabama adopted nitrogen gas as a method of execution in January 2024, making Kenneth Eugene Smith the first person executed using this approach in the U.S.

This method involves placing a respirator on the inmate’s face, replacing breathable air with pure nitrogen, leading to death from a lack of oxygen. Critics have labeled it inhumane and torturous.

A Columbia University Law School professor, Bernard Harcourt, remarked that three minutes of conscious asphyxiation is akin to torture. He argued that this doesn’t just breach constitutional norms, but also international law.

So far, nitrogen has been used in eight executions, seven in Alabama and one in Louisiana. Lee was scheduled to be the ninth until Marks’ ruling intervened.

Opponents of the death penalty and critics of this execution method have welcomed Marks’ decision.

The Rev. Jeff Hood, who has served as a spiritual advisor in prior nitrogen executions, expressed hope that such methods will be dismantled nationwide.

Lee stands convicted of two counts of capital murder linked to the deaths of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in 1998. Prosecutors state he entered the shop with a shotgun, killing both the owner and an employee.

Although the jury suggested a life sentence with a 7-5 vote, the presiding judge opted for death, a practice Alabama has since discarded, no longer allowing judges to override jury recommendations in capital cases.