A federal appeals court has raised constitutional concerns about Alabama's use of nitrogen gas for executions, reversing a lower court's finding that the method does not violate the Eighth Amendment's ban on cruel and unusual punishment and sending the case back for additional review.
Background
The three-judge panel issued its ruling Monday night in a lawsuit filed by Jeffery Lee, who is scheduled to be executed using nitrogen hypoxia on Thursday at a south Alabama prison. The method involves strapping a respirator mask to the person's face and replacing breathable air with pure nitrogen, causing death through oxygen deprivation.
Alabama first implemented nitrogen gas as a means of capital punishment in 2024. The state has used the method seven times, accounting for the vast majority of eight total nitrogen executions conducted nationally. Louisiana has performed one execution using this method.
Lee was convicted in 1999 of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson during a robbery at Jimmy's Pawnshop on Dec. 12, 1998. Prosecutors alleged Lee entered the store with a sawed-off shotgun and shot both the owner and an employee. A jury voted 7-5 to recommend life imprisonment without parole, but a judge overrode that recommendation and sentenced Lee to death. Alabama ended the practice of judicial override in capital cases in 2017.
The Investigation
The U.S. Court of Appeals for the Eleventh Circuit reversed a federal judge's May ruling that had found the nitrogen method constitutional. Under Supreme Court precedent, defendants challenging an execution method must satisfy a two-prong test: demonstrating the method poses a substantial risk of superadded pain and that a feasible alternative exists.
The appeals court determined Lee met the first prong but said the lower court should reconsider whether he has presented a viable alternative method. The panel noted concerns about how long it takes a person to lose consciousness under nitrogen hypoxia.
"In our view, the overall suffering described by the district court, which lasts for one to three minutes, presents a substantial risk of serious harm over and above death itself," the panel wrote. "Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place under Alabama's nitrogen hypoxia protocol."
Alabama Attorney General Steve Marshall opposed clemency for Lee. "The people of Alabama have not forgotten Jimmy and Elaine," Marshall said in a statement. "Anything short of carrying out the sentence imposed by the court falls short of justice for the victims, and that is not what victims of this state deserve."
Key Takeaways
- Federal appeals court reversed lower court's finding that nitrogen execution method is constitutional under Eighth Amendment
- Jeffery Lee's scheduled execution Thursday remains in place pending further review
- Court found nitrogen hypoxia poses substantial risk of superadded pain lasting one to three minutes
- Panel sent case back to trial court to consider whether firing squad represents a feasible alternative method
- Alabama has conducted seven of eight total nitrogen executions performed nationally since 2024
- Lee was convicted of killing Jimmy Ellis and Elaine Thompson during a 1998 pawn shop robbery
What's Next
The case returns to the federal district court for additional consideration of whether Lee has demonstrated a feasible alternative execution method. The appeals panel did not issue an immediate stay of Lee's scheduled Thursday execution, leaving the path forward uncertain. Alabama Attorney General's Office had not issued a formal response to the ruling as of early Tuesday morning.
The decision marks the first time a federal appellate court has acknowledged constitutional concerns about nitrogen gas executions. Rev. Jeff Hood, who served as spiritual adviser at two previous nitrogen executions, praised the ruling: "For the first time a court has acknowledged what I and so many others have seen with our own eyes. Nitrogen executions are a unique form of horror."