A federal judge in Alabama ruled on Thursday that execution by nitrogen gas does not violate the constitutional prohibition on cruel and unusual punishment, rejecting an inmate's claim that the method causes excessive suffering. The decision came after the first bench trial in the United States to examine the constitutionality of the execution method, which has been used on eight individuals so far—seven in Alabama and one in Louisiana.
The ruling clears the way for Alabama and other states to continue using nitrogen gas executions, dealing a setback to critics who had hoped that a thorough examination of Alabama's protocol would halt its use. The method, first employed in 2024, involves strapping a respirator to the inmate's face and replacing breathable air with pure nitrogen gas, leading to death from oxygen deprivation.
The lawsuit challenging the method was filed by death row inmate Jeffery Lee, 58, who is scheduled to be executed by nitrogen gas on June 11 at a south Alabama prison. U.S. District Judge Emily C. Marks wrote in her ruling, "While Lee establishes that death by nitrogen hypoxia involves some suffering, he fails to show that the protocol is cruel and unusual in violation of the Eighth Amendment."
Attorneys for the state and Lee disputed the duration that inmates remain conscious during a nitrogen gas execution. Marks noted that the evidence indicates Alabama's protocol "likely causes severe air hunger—the most severe form of breathing discomfort—for one to three minutes" but concluded that this does not rise to a constitutional violation. Lee's attorneys have indicated they will appeal the decision.
Alabama Attorney General Steve Marshall praised the ruling, stating, "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."
Inmates executed by nitrogen gas have exhibited varying degrees of shaking during the process, and lawyers for the state and inmates have disagreed on whether these movements are involuntary or signs of suffering. Alabama's most recent nitrogen gas execution took over 30 minutes to complete. Marks noted that Lee faced a high legal bar because the U.S. Supreme Court has yet to find any state's execution method to be cruel and unusual.
According to the Death Penalty Information Center, five states have authorized nitrogen gas as an execution method, but only two have actually used it. Lee was convicted of capital murder for the deaths of Jimmy Ellis and Elaine Thompson on December 12, 1998, near Orrville, Alabama. Prosecutors stated that Lee entered a pawn shop with a sawed-off shotgun and fatally shot both victims. A jury voted 7-5 in favor of life imprisonment, but a judge overrode that recommendation and sentenced Lee to death. Alabama ended the practice of judicial override in 2017, no longer allowing judges to disregard jury sentencing recommendations in death penalty cases.
Lee's legal team did not immediately comment on the decision. Abraham Bonowitz, executive director of Death Penalty Action, a group opposing the death penalty, remarked, "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." He added that Lee would not face the death penalty if sentenced today because judicial override has been abolished.
