Federal judge upholds constitutionality of nitrogen gas executions
[May 29, 2026]
By KIM CHANDLER
MONTGOMERY, Ala. (AP) — 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 that has now been used to
put eight people to death, seven in Alabama and one in Louisiana. The
ruling clears the way for Alabama and other states to continue with the
method and is 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. The lawsuit challenging
the method was filed last year by death row inmate Jeffery Lee. Lee, 58,
is scheduled to be executed with nitrogen gas on June 11 at a south
Alabama prison.
“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,” U.S. District Judge Emily C. Marks
wrote.
Attorneys for the state and Lee disputed how long inmates are awake
during a nitrogen gas execution. Marks wrote the 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
arise to a constitutional violation.
Lee's attorneys indicated in court filings that they are appealing the
decision.
The Alabama attorney general praised the judge's decision.
“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,” Alabama Attorney General Steve Marshall said.
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.
[to top of second column]
|
Abraham Bonowitz, executive director of Death Penalty Action, and
other death penalty opponents hold a demonstration outside the
Alabama Capitol in Montgomery, Ala., Wednesday, Sept. 25, 2024,
asking the state to call off the scheduled execution of Alan Miller
in what would be the nation's second execution using nitrogen gas.
(AP Photo/Kim Chandler, File)
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.
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 Ellis and Thompson
on Dec. 12, 1998, near the small town of Orrville, Alabama.
Prosecutors said Lee entered a pawn shop with a sawed-off shotgun
and fatally shot Jimmy Ellis, the owner of the store, and Elaine
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.
Lee's legal team did not issue an immediate comment on the decision.
“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," said Abraham Bonowitz, executive director of
Death Penalty Action, a group that opposes the death penalty.
He added that Lee would not face the death penalty if sentenced
today because judicial override has been abolished.
All contents © copyright 2026 Associated Press. All rights reserved
 |
