Judge bars Alabama nitrogen gas execution, says method is
unconstitutionally cruel
[June 10, 2026]
By KIM CHANDLER
MONTGOMERY, Ala. (AP) — A federal judge on Tuesday permanently blocked
Alabama from executing an inmate with nitrogen gas after declaring the
method violates the U.S. Constitution's ban on cruel and unusual
punishment.
U.S. District Judge Emily Marks issued the ruling hours after an appeals
court reversed her initial finding that the method was constitutional.
Marks permanently enjoined the state from executing Jeffrey Lee, 49, by
nitrogen gas. He was scheduled to be executed Thursday.
The decision, for now, blocks the use of the controversial new execution
method that Alabama has championed since 2024. But the issue seems
likely bound for the U.S. Supreme Court, which so far has never ruled a
state's execution method to be unconstitutional.
Alabama Attorney General Steve Marshall's office is appealing the
decision, according to a Tuesday night court filing. Marshall's office
did not issue an immediate comment. A spokeswoman for Lee’s legal team
said they did not have an immediate comment.
Marks wrote that the appeals court found the method carried “a
substantial risk of serious harm." She also ruled that the state had the
ability to switch to Lee’s preferred method, a firing squad. Inmates
challenging execution methods are required to suggest an alternative
method.
“Therefore, Lee has shown by a preponderance of the evidence that the
protocol constitutes cruel and unusual punishment in violation of the
Eighth Amendment,” Marks wrote.
Marks wrote that her order only blocks the state from executing Lee by
nitrogen gas. She noted the state has two other authorized execution
methods, lethal injection and the electric chair. She said Lee is “not
entitled to an injunction barring the state from executing him using one
of those methods.”
Alabama in 2024 began using nitrogen gas to carry out some executions.
The execution method involves strapping a respirator to the person’s
face and replacing breathable air with pure nitrogen gas, causing death
from lack of oxygen. Nitrogen has been used in eight executions in the
United States — seven times in Alabama and once in Louisiana. Lee was
scheduled to be the ninth person executed with nitrogen.
A three-judge panel from the 11th U.S. Circuit Court of Appeals on
Monday set the stage for Tuesday's ruling. The court said the three
minutes that it could take for an inmate to lose awareness is an
“intolerable” time frame, "given the suffering that would likely take
place under Alabama’s nitrogen hypoxia protocol.”
The decision was welcomed by death penalty opponents and critics of the
controversial execution method.
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Protesters gather outside the Capitol in Montgomery, Ala., on
Monday, June 8, 2026, to oppose an upcoming execution in Alabama.
(AP Photo/Kim Chandler)
“Three minutes of conscious suffocation is torturous. If that
doesn’t violate the constitution, let alone international law,
nothing would,” said Bernard Harcourt, a professor at Columbia
University Law School. Harcourt represents one of several other
Alabama inmates challenging the method as unconstitutional.
The Rev. Jeff Hood, who served as spiritual adviser at two nitrogen
executions, said, “I pray that we are witnessing the collapse of
this horrific method nationwide.”
Alabama has maintained that the method is constitutional.
In her 26-page ruling, Marks noted the constant litigation over
execution methods.
“Were Alabama to adopt firing squad as a method of execution, that
method would likely be challenged as well. Indeed, there is likely
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 purposefully extinguished
without some risk of pain. The Court, the condemned, and the State
must all confront that sobering reality,” Marks wrote.
Lee is currently housed at Holman Correctional Facility in Atmore.
He was convicted of two counts of capital murder for killing Jimmy
Ellis and Elaine Thompson while robbing a pawnshop on Dec. 12, 1998.
Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off
shotgun and shot Ellis, the owner of the store, 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 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.
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