MONTGOMERY, Ala. (AP) — A federal judge on Tuesday permanently blocked Alabama from executing an inmate with nitrogen gas after declaring the method violates the U.S. Constitution's ban on cruel and unusual punishment.
U.S. District Judge Emily Marks issued the ruling hours after an appeals court reversed her initial finding that the method was constitutional. Marks permanently enjoined the state from executing Jeffrey Lee, 49, by nitrogen gas. He was scheduled to be executed Thursday.
The decision, for now, blocks the use of the controversial new execution method that Alabama has championed since 2024. But the issue seems likely bound for the U.S. Supreme Court, which so far has never ruled a state's execution method to be unconstitutional.
Alabama Attorney General Steve Marshall's office is appealing the decision, according to a Tuesday night court filing. Marshall's office did not issue an immediate comment. A spokeswoman for Lee’s legal team said they did not have an immediate comment.
Marks wrote that the appeals court found the method carried “a substantial risk of serious harm." She also ruled that the state had the ability to switch to Lee’s preferred method, a firing squad. Inmates challenging execution methods are required to suggest an alternative method.
“Therefore, Lee has shown by a preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment,” Marks wrote.
Marks wrote that her order only blocks the state from executing Lee by nitrogen gas. She noted the state has two other authorized execution methods, lethal injection and the electric chair. She said Lee is “not entitled to an injunction barring the state from executing him using one of those methods.”
Alabama in 2024 began using nitrogen gas to carry out some executions. The execution method involves strapping a respirator to the person’s face and replacing breathable air with pure nitrogen gas, causing death from lack of oxygen. Nitrogen has been used in eight executions in the United States — seven times in Alabama and once in Louisiana. Lee was scheduled to be the ninth person executed with nitrogen.
A three-judge panel from the 11th U.S. Circuit Court of Appeals on Monday set the stage for Tuesday's ruling. The court said the three minutes that it could take for an inmate to lose awareness is an “intolerable” time frame, "given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.”
The decision was welcomed by death penalty opponents and critics of the controversial execution method.
“Three minutes of conscious suffocation is torturous. If that doesn’t violate the constitution, let alone international law, nothing would,” said Bernard Harcourt, a professor at Columbia University Law School. Harcourt represents one of several other Alabama inmates challenging the method as unconstitutional.
The Rev. Jeff Hood, who served as spiritual adviser at two nitrogen executions, said, “I pray that we are witnessing the collapse of this horrific method nationwide.”
Alabama has maintained that the method is constitutional.
In her 26-page ruling, Marks noted the constant litigation over execution methods.
“Were Alabama to adopt firing squad as a method of execution, that method would likely be challenged as well. Indeed, there is likely no method — no matter how humane — that would be immune to constitutional challenge. But the Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality,” Marks wrote.
Lee is currently housed at Holman Correctional Facility in Atmore. He was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson while robbing a pawnshop on Dec. 12, 1998. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off shotgun and shot Ellis, the owner of the store, and 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.
