Federal Judge Permanently Blocks Alabama Nitrogen Gas Execution of Jeffrey Lee

US District Judge Emily C. Marks issued a permanent injunction Tuesday barring Alabama from executing Jeffrey Lee by nitrogen gas. The ruling came hours after a three-judge panel of the 11th US Circuit Court of Appeals reversed her earlier finding that the method was constitutional.

Lee, 49, had been scheduled for execution on Thursday at Holman Correctional Facility in Atmore. Marks wrote that Lee had shown by a preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment.

The 11th Circuit panel stated on Monday that the three minutes 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.

Marks also ruled that the state could change the form of execution to Lee’s preferred method, a firing squad. Marks’ order blocks only the use of nitrogen gas. She said Lee is not entitled to an injunction barring the state from executing him using lethal injection or the electric chair, Alabama’s two other authorized methods.

Alabama Attorney General Steve Marshall’s office filed a notice of appeal. Alabama officials have maintained that the nitrogen gas method is constitutional. The issue appears likely bound for the US Supreme Court, which has never ruled a state’s execution method unconstitutional.

Marks wrote that were Alabama to adopt firing squad as a method of execution, that method would likely be challenged as well. She added that the Constitution does not guarantee a painless death and that human life cannot be purposefully extinguished without some risk of pain. Alabama began using nitrogen gas for executions in January 2024.