Judge blocks nitrogen gas executions in Alabama, ruling the method is unconstitutional
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A federal judge on Tuesday permanently blocked the execution by nitrogen gas of Alabama death row inmate Jeffrey Lee after finding that it violated the U.S. Constitution’s ban on cruel and unusual punishment.
U.S. District Judge Emily C. Marks issued the decision hours after the appeals court overturned its initial finding that the controversial execution method was constitutional. It permanently banned the state from using nitrogen gas in the execution of 49-year-old Jeffrey Lee, who is scheduled to be executed Thursday.
The appeals court found the method posed a “risk of causing serious harm,” the judge wrote. A three-judge panel of the 11th U.S. Circuit Court of Appeals on Monday said the three minutes it takes for an inmate to lose consciousness is an “intolerable” time frame, given the pain that would be experienced under Alabama’s nitrogen hypoxia protocol.
Marks also ruled that the state could change the execution style to Lee’s preferred firing squad method. Prisoners who oppose execution methods must propose an alternative method.
ALABAMA DEATH MATTER INSISTS HIS INNOCENCE, CALLS THE GOVERNOR TO MEET HIM BEFORE HIS NITROGEN GAS EXECUTION
Protesters gathered outside the Capitol in Montgomery, Alabama, on Monday against an impending execution in the state. (AP Photo/Kim Chandler)
“Lee therefore showed by a preponderance of the evidence that the protocol constituted cruel and unusual punishment in violation of the Eighth Amendment,” Marks wrote.
Marks’ order only prevents the state from executing Lee with nitrogen gas. The state has two other authorized execution methods: lethal injection and the electric chair. He said Lee “had no right to seek an injunction preventing the state from executing him using either of these methods.”
Alabama Attorney General Steve Marshall’s office is appealing the decision, according to a new court filing. Alabama officials argued the method was constitutional.
The issue is likely to concern the U.S. Supreme Court, which has not ruled that any state’s method of execution is unconstitutional.
“If Alabama had adopted firing squad as a method of execution, that method would likely have been challenged as well. Indeed, there is probably 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 deliberately extinguished without some risk of suffering. The Court, the prisoners, and the State must all confront this sobering truth,” Marks wrote in his decision. he wrote.
A judge permanently barred the state from using nitrogen gas in the execution of 49-year-old Jeffrey Lee, who is scheduled to be executed on Thursday. (Alabama Department of Corrections)
Alabama began using nitrogen gas in January 2024, when convicted murderer Kenneth Eugene Smith became the first person in the country to be executed using this method.
The execution method, which involves strapping a respirator to the prisoner’s face and replacing breathable air with pure nitrogen gas, causing death due to lack of oxygen, has been criticized by opponents as inhumane and torture.
Bernard Harcourt, a Columbia University Law School professor who represents one of the other Alabama inmates who challenged the method as unconstitutional, told The Associated Press: “Three minutes of conscious asphyxiation is torture. If it doesn’t violate the constitution, let alone international law, it doesn’t violate anything.”
Nitrogen was used in eight executions in the US, seven in Alabama and one in Louisiana. Lee would be the ninth person executed by nitrogen prior to Marx’s order.
Death penalty opponents and critics of the controversial execution method praised Marks’ decision on Tuesday.
ALABAMA VIOLATED THE CONSTITUTIONAL RIGHTS OF THE MAN RECEIVED THE DEATH SENTENCE, COURT RULES
Alabama’s lethal injection chamber shown at Holman Correctional Facility in Atmore, Alabama, on October 7, 2002. (AP Photo/Dave Martin)
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“I pray that we will witness the nationwide collapse of this horrific method,” said the Rev. Jeff Hood, who served as spiritual advisor on two nitrogen executions.
Lee is being held at the Holman Correctional Facility in Atmore on two counts of death row for killing Jimmy Ellis and Elaine Thompson while robbing a pawnshop on Dec. 12, 1998. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawn-off shotgun and shot Ellis, the store’s owner, and Thompson, an employee at the business.
The jury voted 7-5 that Lee should be sentenced to life in prison, but the judge overruled that recommendation and sentenced him to death.
Alabama later ended a judge’s ability to disregard a jury’s sentencing verdict in death penalty cases.
The Associated Press contributed to this report.
