A federal judge has prohibited Alabama from executing a death row inmate using nitrogen hypoxia, overturning a previous opinion that deemed the method unconstitutionally cruel.
The decision permanently prevents the state from executing Jeffrey Lee, 49, with nitrogen gas. Lee, convicted of a 1998 double murder, was set to be executed on Thursday. Prosecutors contend he fatally shot Jimmy Ellis, a store owner, and employee Elaine Thompson while attempting a robbery.
U.S. District Judge Emily Marks ruled that Alabama’s nitrogen gas protocol violates the Eighth Amendment, which guards against cruel and unusual punishment. This follows an appeals court’s reversal of Marks’ previous decision where the method was considered constitutional.
“Lee has demonstrated by a preponderance of evidence that the Protocol constitutes cruel and unusual punishment,” Marks noted, referencing the appeals court’s recent opinion.
During an April bench trial, expert and lay witness testimonies revealed that inmates subjected to nitrogen gas likely endure “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort” before asphyxiation. The opinion stressed the substantial risk of serious harm, describing the timeframe as intolerable given the resultant suffering.
Marks’ ruling signifies a pivotal change in challenges to capital punishment in Alabama, which has faced recurring legal challenges since executing inmates via nitrogen hypoxia from 2024. Inmates often struggle to prove such claims convincingly.
To contest an execution method under the Eighth Amendment, the Supreme Court requires proof that a significant risk of severe pain exists and demands a reasonable alternative method for execution. Lee suggested a firing squad, arguing it “is feasible, readily implemented, and significantly reduces the substantial risk of serious harm.” While not currently authorized in Alabama, Marks criticized the state’s refusal to consider it, lacking a “legitimate penological reason.”
Alabama Attorney General Steve Marshall’s office plans to contest Marks’ ruling. Despite criticism, the state denies any cruelty in its gas protocol. Had the execution proceeded, Lee would be the eighth person executed by nitrogen hypoxia in Alabama, with Louisiana having conducted one such execution.
The U.S. Supreme Court, which has not declared any capital punishment method unconstitutional, is expected to next consider the validity of Alabama’s nitrogen gas protocol.