Breaking: Federal court rules Alabama's nitrogen gas execution protocol unconstitutional

Judge Emily Marks on Tuesday barred Alabama from using nitrogen gas to suffocate Jeffery Lee to death Thursday.

A pair of rulings over the past 30 hours led to a final judgment from U.S. District Judge Emily Marks on Tuesday permanently blocking Alabama from suffocating Jeffery Lee to death using nitrogen gas, a method of execution referred to as “nitrogen hypoxia.”

Following a Tuesday opinion from Marks building on a Monday ruling from the U.S. Court of Appeals for the Eleventh Circuit, Marks ultimately declared that the state’s “nitrogen hypoxia execution protocol violates the Eighth Amendment.“

Alabma, which had been scheduled to kill Lee on Thursday using the nitrogen hypoxia protocol is now barred from doing so, in large part because the appeals court found that method is likely to cause “severe pain over and above death itself.“

In order to get relief, however, Lee also had to show Marks that there was an alternative method of execution that the state could use that would be likely to cause less pain. He put forward the firing squad as that possibility.

The ruling, in short, is limited. As Marks put it: “The result [of this ruling] is that the State of Alabama cannot execute Lee by nitrogen hypoxia—no more, no less.“

What happened?

Marks, a Trump appointee, had earlier rejected Lee’s request, finding in May that Lee had “failed to prove that the Protocol causes more than ‘the necessary suffering involved in any method employed to extinguish life humanely.’“

On Monday evening, however, the Eleventh Circuit — using Marks’s factual findings — held instead that “Alabama’s nitrogen hypoxia protocol presents a ‘substantial risk of serious harm’—severe pain over and above death itself.“

The panel — which consisted of Judges Adalberto Jordan (Obama), Robert Luck (Trump), and Embry Kidd (Biden) and included no dissent — further explained:

That is the first of two requirements the U.S. Supreme Court set in Glossip v. Gross for a person challenging their method of execution. The second is to “identify an alternative method that ‘is feasible, readily implemented, and in fact significantly reduces the risk of harm involved.’”

Lee had, as noted above, put forward the firing squad. Because Marks had ruled against Lee on the first step, however, she had not considered back in her May ruling whether the firing squad was a sufficient alternative method. As such, the Eleventh Circuit on Monday “remand[ed] the case to the district court with instructions to immediately address the second prong of Glossip.“

A day later, on Tuesday, Marks issued her ruling, applying the Eleventh Circuit’s “legal conclusion that the Protocol poses an unconstitutional risk of pain,“ and addressing Lee’s proposed alternative method.

In summing up her legal conclusion in Lee’s favor, Marks explained:

[T]he Court finds that Lee has shown by a preponderance of the evidence that firing squad is feasible, readily implemented, and significantly reduces the substantial risk of serious harm posed by the Protocol, and that the State failed to proffer a legitimate penological reason not to adopt it.

More simply, she wrote later: “On this record, and in light of the Eleventh Circuit’s opinion, Lee has shown that his proposed firing squad alternative significantly reduces a substantial risk of severe pain as compared to nitrogen hypoxia.“

It is not a pleasant read to get there. After detailing the evidence presented about the firing squad proposal, these were Tuesday’s factual findings:

Nonetheless, those facts led a federal district court in Alabama to declare, with Lee having met both of Glossip’s standards, that Alabama’s nitrogen hypoxia protocol is unconstitutional.

Tuesday’s order came nearly two-and-a-half years after federal courts — up to and including the Supreme Court — allowed Alabama to carry out the first nitrogen hypoxia execution in the United States in January 2024.