Federal Judge Rules Nitrogen Gas Executions Constitutional, Rejecting Cruel and Unusual Punishment Challenge

Alabama faces renewed scrutiny over its use of nitrogen gas executions, but a federal judge has now affirmed the method as constitutional.

Montgomery, Ala. — In a landmark ruling Thursday, a U.S. district judge determined that execution by nitrogen gas does not violate the constitutional prohibition on cruel and unusual punishment, rejecting the arguments of an Alabama death row inmate who said the procedure inflicts severe suffering. The decision stemmed from the country’s first bench trial to examine the legality of the execution method, which has already been used in eight cases — seven in Alabama and one in Louisiana.

The ruling clears the way for Alabama and other states to continue using nitrogen hypoxia, a method first deployed in 2024. It also deals a blow to critics who had hoped that a full examination of Alabama’s protocol would lead to a halt on its use. The process involves strapping a respirator mask to the inmate’s face and replacing breathable air with pure nitrogen gas, causing death by oxygen deprivation.

The legal challenge was brought by Jeffery Lee, a 58-year-old death row inmate scheduled to be executed with nitrogen gas on June 11 at a south Alabama prison. Lee’s lawsuit argued that the method amounts to cruel and unusual punishment under the Eighth Amendment. In her ruling, U.S. District Judge Emily C. Marks acknowledged that the execution method likely causes “severe air hunger — the most severe form of breathing discomfort — for one to three minutes,” but concluded that this does not rise to the level of a constitutional violation.

“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,” Marks wrote.

The state and Lee’s attorneys disagreed during the trial over how long inmates remain conscious during the procedure. Marks noted that the evidence presented did not meet the high legal standard required to overturn a method of execution, pointing out that the U.S. Supreme Court has never found a state’s execution method to be cruel and unusual.

Lee’s legal team has indicated they will appeal the decision. “We are reviewing the ruling and will pursue all available legal remedies,” a spokesperson said in a court filing.

Alabama Attorney General Steve Marshall praised the judge’s ruling, calling it a victory for the rule of law. “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,” Marshall said in a statement.

Inmates executed with nitrogen gas have exhibited varying levels of involuntary shaking during the process, sparking debate over whether those movements indicate suffering. Alabama’s most recent nitrogen gas execution took more than 30 minutes to complete, drawing criticism from death penalty opponents.

According to the Death Penalty Information Center, five states have authorized nitrogen gas as an execution method, though only two have used it so far. The ruling is expected to encourage other jurisdictions considering the method to move forward.

Lee was convicted of capital murder for the December 12, 1998, killings of Jimmy Ellis and Elaine Thompson near Orrville, Alabama. Prosecutors said Lee entered a pawn shop with a sawed-off shotgun and fatally shot the owner and an employee. A jury voted 7-5 in favor of life imprisonment, but the presiding judge overrode that recommendation and sentenced Lee to death — a practice known as judicial override, which Alabama abolished in 2017. Critics note that under current law, Lee would not face a death sentence today.

Abraham Bonowitz, executive director of Death Penalty Action, an organization that opposes capital punishment, said: “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.” He added that Lee’s case highlights the arbitrary nature of capital sentencing before judicial override was banned.

Lee’s attorneys did not immediately respond to requests for comment on the ruling.