A judge blocks the killing of nitrogen gas in Alabama, ruling that the method is unconstitutional
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On Tuesday, a judge permanently blocked Alabama’s death sentence for Jeffrey Lee by nitrogen gas after finding it violated the US constitution’s ban on cruel and unusual punishment.
US District Judge Emily C. Marks issued the ruling hours after an appeals court reversed her initial finding that the controversial execution method was constitutional. He permanently barred the state from using nitrogen gas to kill Jeffrey Lee, 49, who was scheduled to be executed on Thursday.
The judge wrote that the appeals court found that the method “carried a high risk of serious injury.” A three-judge panel of the 11th US Circuit Court of Appeals on Monday said the three minutes it can take an inmate to lose consciousness is “intolerable” time, “given the potential suffering under Alabama’s nitrogen hypoxia protocol.”
Marks also decided that the state could change the method of execution to Lee’s preferred method, which is firing squad. The challenging killing methods of prisoners must suggest an alternative.
ALABAMA PRISONER RESTORES INNOCENTNESS, BEGGS GOVERNOR TO MEET HIM BEFORE NITROGEN-GAS KILLING
Protesters gathered outside the Capitol in Montgomery, Alabama, on Monday, to protest the upcoming execution in the state. (AP Photo/Kim Chandler)
“Therefore, Lee has shown by a preponderance of the evidence that the statute constitutes cruel and unusual punishment in violation of the Eighth Amendment,” Marks wrote.
Marks’ order only prohibits the country from using Lee with nitrogen gas. The state has two other authorized methods of execution: lethal injection and the electric chair. He said Lee “does not have a constitutional right to prevent the state from killing him using one of those methods.”
Alabama Attorney General Steve Marshall’s office is appealing the decision, according to a new court filing. Alabama officials maintain that the measure is constitutional.
The issue appears to be binding on the US Supreme Court, which has never ruled that the country’s execution method is unconstitutional.
“If Alabama were to accept the firing squad as a method of execution, that method could be challenged again. Indeed, almost no method – no matter how benevolent – can be protected from a constitutional challenge. But the Constitution does not guarantee a painless death, and a person’s life cannot be intentionally extinguished without some risk of pain. The court, the condemned, and the State wrote that they should face his decision,” said the State.
A judge has permanently barred the state from using nitrogen gas to kill Jeffrey Lee, 49, who was scheduled to be executed on Thursday. (Alabama Department of Corrections)
Alabama began using nitrogen gas to execute people in January 2024, when convicted murderer Kenneth Eugene Smith became the first person in the country to be executed using that method.
The execution method, which involves strapping a respirator to the prisoner’s face and inhaling pure nitrogen gas, which causes death from lack of oxygen, has been criticized by opponents as inhumane and torture.
“Three minutes of confinement is torture. If that doesn’t violate the constitution, let alone international law, nothing will,” Bernard Harcourt, a professor at Columbia University Law School and a representative of one of the few Alabama inmates challenging the practice as unconstitutional, told the Associated Press.
Nitrogen has been used in eight homicides in the US, seven of them in Alabama and one in Louisiana. Lee would be the ninth person to be killed by nitrogen gas before Marks’ order.
Opponents of the death penalty and critics of the controversial execution praised Marks’ decision on Tuesday.
ALABAMA VIOLATED CONSTITUTIONAL RIGHTS OF DEATH ROW, COURT RULES
Alabama’s lethal injection chamber is on display Oct. 7, 2002, at the Holman Correctional Facility in Atmore, Alabama. (AP Photo/Dave Martin)
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“I pray that we will see the collapse of this evil system across the country,” said the Reverend Jeff Hood, who was a spiritual advisor during the two nitrogen poisonings.
Lee is being held at the Holman Correctional Facility in Atmore after being convicted of two counts of first-degree murder in the murders of Jimmy Ellis and Elaine Thompson during the robbery of a pawn shop on December 12, 1998. Prosecutors say Lee walked into Jimmy’s Pawnshop with a sawed-off gun and shot Ellis, who worked at the store with Thompson, who owned the store with Thomp.
The jury voted 7-5 that Lee should be sentenced to life in prison, but the judge overruled that recommendation and sentenced him to death.
Alabama later eliminated the judge’s ability to override the jury’s verdict in death penalty cases.
The Associated Press contributed to this report.
