Alabama is embroiled in a late-stage legal battle to proceed with the execution of a man using nitrogen gas, potentially setting a precedent for this controversial method. The state is appealing to the U.S. Supreme Court to overturn a federal judge’s ruling that the method contravenes the Constitution’s prohibition of cruel and unusual punishment.
Earlier this week, U.S. District Judge Emily Marks deemed Alabama’s nitrogen execution protocol unconstitutional, thereby halting the planned execution of Jeffery Lee, aged 49. Following this decision, the Alabama attorney general’s office swiftly moved to appeal.
The outcome of this legal wrangle will decide if Lee’s execution, slated for Thursday night, will proceed using nitrogen gas. This decision could also influence the future use of nitrogen as an execution method, which Alabama began employing in 2024.
Mike Lewis, spokesperson for Alabama Governor Kay Ivey, stated in an email, “As Alabama continues to defend its execution protocol in the courts, the governor remains prepared to move forward with the planned execution.”
Nitrogen executions involve securing a respirator over an inmate’s face and displacing breathable air with pure nitrogen gas, leading to death from oxygen deprivation. This method has been used eight times in the U.S., including seven instances in Alabama and once in Louisiana. Lee was scheduled to be the ninth individual executed using nitrogen.
Judge Marks made her ruling after an appeals court reversed her initial finding that the method was constitutional. The 11th U.S. Circuit Court of Appeals, in a 2-1 decision, declined Alabama’s request to stay the ruling, noting that the potential three-minute period for loss of awareness was “intolerable,” considering the likely suffering under Alabama’s nitrogen hypoxia protocol.
Alabama’s attorney general’s office confirmed the state is appealing to the Supreme Court, which has yet to rule that any specific execution method breaches the Constitution.
The case has reignited the debate over nitrogen gas as an execution method, amid stark disagreements on its application.
In previous nitrogen executions in Alabama, inmates exhibited signs of distress such as shaking and labored breathing. In one instance, 30 minutes passed from Anthony Boyd showing signs of gas exposure to officials signaling the execution’s completion by closing the curtain to the viewing room.
The state maintains that nitrogen hypoxia is constitutional and does not cause more suffering than other execution methods. “If nitrogen hypoxia violates the Eighth Amendment because of a risk of anxiety and emotional discomfort, then so too must every other method of execution, many of which carry inherent risks of real physical pain,” state lawyers argued in a court filing.
Lee’s legal team contends Alabama seeks to proceed with an execution method already deemed unconstitutional by courts. They have called on Governor Ivey to commute Lee’s sentence to life imprisonment, noting that this was the jury’s original recommendation.
“Alabama Attorney General Steve Marshall wants to execute Jeffery Lee under a death sentence the jury rejected using a nitrogen gas method that two federal courts have ruled unconstitutional. This execution is simply too flawed to move forward,” Lee’s attorneys stated, expressing hope for gubernatorial intervention.
Lee was convicted of capital murder for the 1998 killings of Jimmy Ellis and Elaine Thompson during a pawnshop robbery. The jury initially recommended life imprisonment, but a judge overrode this decision, sentencing Lee to death. Alabama abolished judicial override in 2017, but this change did not apply retroactively.
