A federal appeals court has ordered further examination of Alabama’s nitrogen gas execution protocol, questioning whether the method violates constitutional protections against cruel and unusual punishment, according to a Monday ruling.
Alabama became the first state to implement nitrogen gas for capital punishment in 2024. The court’s decision could impact an execution planned for Thursday. The procedure involves placing a mask over the condemned person’s face and administering pure nitrogen instead of breathable air, leading to death by oxygen deprivation.
On Monday evening, a three-judge appeals panel overturned a lower court’s May decision that found the nitrogen protocol constitutional. The case was sent back for further review following a legal challenge brought by Jeffery Lee, a death row inmate set to be executed Thursday at a prison in southern Alabama.
While the panel did not halt Lee’s scheduled execution, they instructed the lower court to examine whether his suggested alternative method of execution by firing squad would be practical.
Federal law requires challengers of execution methods to meet two criteria: demonstrating the method creates substantial risk of additional pain beyond death, and proving a viable alternative exists. The appeals court determined Lee satisfied the first requirement but returned the case to evaluate the second.
The appeals panel expressed specific worries about the nitrogen procedure and the duration before unconsciousness occurs.
“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.”
The Alabama Attorney General’s Office has not yet responded to the ruling. State officials have consistently defended the method as constitutional.
Critics of the execution method welcomed the court’s decision.
“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,” said the Rev. Jeff Hood, who served as spiritual adviser during two nitrogen executions.
Eight executions using nitrogen gas have occurred nationwide — seven in Alabama and one in Louisiana. Lee’s legal team contends the method inflicts unnecessary suffering. Alabama’s most recent nitrogen execution required over 30 minutes to complete.
Lee received conviction on two capital murder charges for the deaths of Jimmy Ellis and Elaine Thompson during a pawn shop robbery on Dec. 12, 1998. According to prosecutors, Lee entered Jimmy’s Pawnshop armed with a sawed-off shotgun and fatally shot Ellis, the shop’s owner, and Thompson, an employee.
A jury recommended life imprisonment for Lee by a 7-5 vote. A judge overruled this recommendation and imposed the death sentence. Alabama discontinued judicial override in 2017, preventing judges from overturning jury sentencing decisions in capital cases.
The court’s decision came hours after supporters held a vigil at the Alabama Capitol, asking the governor to commute Lee’s sentence to life imprisonment.
Alabama Attorney General Steve Marshall opposed the clemency petition.
“The people of Alabama have not forgotten Jimmy and Elaine. I have not forgotten them,” Marshall said. “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.”
