Alabama’s controversial nitrogen hypoxia execution method ‘intolerable,’ court rules

A federal appeals court has delivered a major ruling regarding Alabama's use of nitrogen gas for capital punishment, labeling the method potentially "intolerable" in a decision that shakes up the state's legal landscape just days before a scheduled execution.

Legal Battle Over Execution Methods

Attorneys for death row inmate Jeffery Lee have fought to halt his upcoming Thursday execution, arguing that the state’s nitrogen hypoxia protocol inflicts severe, unconstitutional physical and mental pain. Seeking an alternative, the defense proposed the use of a firing squad. This strategy faced a setback late last month when a federal judge in Montgomery sided with the state, ruling that the protocol did not surpass the suffering inherent in a standard death sentence.

However, the 11th Circuit Court of Appeals flipped that narrative on Tuesday night. The court determined that Lee successfully demonstrated that Alabama’s protocol presents a substantial risk of serious harm.

"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 appellate court 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."

Looking for Alternatives

The appeals court has reversed the judgment of U.S. District Judge Emily Marks, remanding the case back to her courtroom to weigh whether a firing squad serves as a "feasible and readily implemented" alternative that could significantly reduce the risk of harm. Despite this ruling, the court did not grant Lee’s request for a stay of his execution.

Implementing a firing squad is not a simple task for the state. Such a change would require the Alabama legislature to pass new laws, followed by the development of a specific execution protocol. The Attorney General’s Office has previously noted that the William C. Holman Correctional Facility in Atmore, which houses the state's only execution chamber, is not currently equipped to facilitate firing squad executions.

Historical Context and Background

Alabama first authorized nitrogen gas as an execution method via state law, with inmates being given a one-month window in 2018 to opt into the procedure. Lee was among those who chose this method. In January 2024, Kenneth Eugene Smith became the first person in the nation to be put to death using the nitrogen hypoxia method.

Lee has been involved in litigation challenging the protocol since August 2025, a case that has seen coordination with a handful of other inmates facing similar circumstances. His legal team contends the process forces inmates to endure conscious suffocation.

Lee was originally convicted for his role in the 1998 robbery and shooting deaths of Jimmy Ellis and Elaine Thompson at a pawn shop in Orrville. He was also convicted of the attempted murder of Helen King. His original death sentence was the result of a judicial override, a practice where a judge sentences an inmate to death despite a jury's recommendation of life without parole. While Gov. Kay Ivey signed a law banning judicial override in 2017, the change was not retroactive for those already on death row.