A federal judge on Thursday ruled that execution by nitrogen gas does not violate the constitutional ban on cruel and unusual punishment, rejecting an Alabama inmate's claim that it causes excessive suffering. The ruling came after the first bench trial in the country to examine the constitutionality of the execution method, which has now been used to put eight people to death—seven in Alabama and one in Louisiana.
Ruling Clears Path for Continued Use
The decision clears the way for Alabama and other states to continue with the method, marking a setback for critics who hoped a fuller examination of Alabama's protocol would halt its use. The execution method, first used in 2024, involves strapping a respirator to the person's face and replacing breathable air with pure nitrogen gas, causing death from lack of oxygen.
Legal Challenge Dismissed
The lawsuit challenging the method was filed last year by death row inmate Jeffery Lee, 58, who is scheduled to be executed with nitrogen gas on June 11 at a south Alabama prison. U.S. District Judge Emily C. Marks wrote: “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 how long inmates are awake during a nitrogen gas execution. Marks noted that evidence shows Alabama’s protocol “likely causes severe air hunger—the most severe form of breathing discomfort—for one to three minutes” but did not rise to a constitutional violation. Lee's attorneys indicated in court filings that they are appealing the decision.
State Officials Praise Decision
Alabama Attorney General Steve Marshall praised the judge's decision, 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 displayed various levels of shaking during the executions, and lawyers for the state and inmates have disagreed on whether those are involuntary or a sign of suffering. Alabama's last nitrogen gas execution took more than 30 minutes to complete. Marks noted that Lee faced a high legal bar because the U.S. Supreme Court has yet to find a state’s method of execution qualifies as cruel and unusual.
Background on Nitrogen Gas Executions
Five states have authorized nitrogen gas as an execution method, according to the Death Penalty Information Center, although only two states have used it. Lee was convicted of capital murder for killing Jimmy Ellis and Elaine Thompson on December 12, 1998, near the small town of Orrville, Alabama. Prosecutors said Lee entered a pawn shop with a sawed-off shotgun and fatally shot Ellis, the owner, 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 ended the practice of judicial override in 2017 and no longer allows a judge to disregard a jury’s sentencing decision in death penalty cases. Lee's legal team did not issue an immediate comment on the decision.
Abraham Bonowitz, executive director of Death Penalty Action, a group opposing the death penalty, said: “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.
