Appeals court upholds ruling declaring Alabama’s nitrogen gas executions unconstitutional

A federal appeals court Wednesday evening upheld a lower court ruling declaring Alabama’s nitrogen gas execution protocol unconstitutional.

In a 2-1 ruling, U.S. District Judges Adalberto Jordan and Embry Kidd, who on Monday ruled that the process created “air hunger” that went beyond the pain expected in an execution, wrote that attorneys for the state had not shown that a lower court erred in finding that Jeffery Lee, scheduled to be executed on Thursday, had shown that execution by firing squad was a plausible alternative. 

“It goes without saying that Mr. Lee would suffer irreparable harm if he were executed pursuant to a method that the district court has found unconstitutional,” the opinion said. “To him, loss of life is not compensable by legal remedies like damages.”

U.S. District Judge Robert Luck, who joined the panel’s opinion on Monday, dissented from Wednesday’s ruling, saying attorneys from the state had shown the difficulties in assembling a firing squad for his execution.

“If Lee was concerned about the nitrogen hypoxia protocol and genuinely wanted a constitutionally assured method of execution, he would have chosen one of the two authorized in Alabama,” Luck wrote. “But he didn’t. He sought an alternative that only two states have used over the last one hundred years and sought an injunction that barred any method other than one Alabama doesn’t authorize.”

It was not immediately clear late Wednesday if the state would appeal the ruling to the U.S. Supreme Court, though an appeal is likely. Representatives for Gov. Kay Ivey and the Alabama Department of Corrections said prior to the court’s ruling on Wednesday that the Thursday execution would proceed, though they did not say how.

Seven executions

Alabama has conducted seven nitrogen gas executions since 2024. In several instances, witnesses have reported those subjected to the process convulsing and struggling for breath over several minutes. 

A jury convicted Lee of capital murder for his role in the deaths of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in 1998 in Orrville, Alabama. A jury voted 7-5 to recommend that he be sentenced to life in prison without the possibility of parole, but the judge in the case sentenced him to death.

Lee argued in appeals that the state’s use of nitrogen gas constituted cruel and unusual punishment. U.S. District Judge Emily Marks initially upheld the constitutionality of nitrogen gas execution in a May 29 ruling, saying that an inmate being deprived of air for one to three minutes did not constitute an Eighth Amendment violation. The three-judge panel of the 11th Circuit Court of Appeals on Monday reversed that decision, ruling that the process created “air hunger” that was “over and above” the stress that accompanies an execution.

Marks Tuesday wrote that Lee had shown that execution by firing squad would be a feasible alternative.

Appeals

 In its appeal, the attorney general’s office said the U.S. Supreme Court has never declared an execution method unconstitutional.  

“If nitrogen hypoxia violates the Eighth Amendment because of a risk of anxiety and emotional discomfort, then so too must every other method of execution, many of which carry inherent risks of real physical pain — manual strangulation, bullets ripping through flesh and bone but not killing, the ‘agonizing choking and gagging’ of death by cyanide, burning alive, and drugs delivered in insufficient doses,” the filing said. 

Federal judge blocks use of Alabama’s nitrogen gas execution protocol

The state also noted that firing squads were not authorized methods of execution in Alabama law and cited reported issues with South Carolina’s 2025 firing squad execution of Mikal Deen Mahdi. Witnesses reported that Mahdi took at least 45 seconds to die after being shot. A pathologist for attorneys representing inmates on South Carolina’s death row later said that two of the bullets entered below his heart.

“Warden (Terry) Raybon testified that the walls of the execution chamber are constructed of cinderblocks, and he did not believe they were reinforced with concrete or rebar,” the appeal said. “He testified that the decommissioned portion of Holman is not fortified with things like bulletproof glass and that there are security concerns with its use.”

Bullets mostly missed SC inmate’s heart, attorneys claim in legal filing

In a response filed on Wednesday, Lee’s attorneys said the state was asking to execute Lee under an “unconstitutional method” and said the state had failed to show that the court made any clear error in its decision. 

“If this court grants defendants’ extraordinary (and, by all accounts, unprecedented) request, defendants will proceed to execute Mr. Lee tomorrow using a method that a federal district court just found to be unconstitutional,” the filing said. “Once that execution occurs, neither this Court nor the Supreme Court can review Mr. Lee’s Eighth Amendment claim. Defendants are therefore asking this Court to suspend the district court’s final judgment long enough to render it effectively unreviewable.”

Following the three-judge panel’s ruling, Marks cited the testimony of James Williams, a physician and gunshot survivor, who said that death resulting by firing squad would happen relatively quickly.

The Alabama Attorney General’s Office tried to undermine Williams’ testimony, focusing on the problems with Mahdi’s execution.

Williams argued that the issues that happened in Mahdi’s execution were an anomaly, and that most times that process would proceed as expected. Lee’s attorneys said Tuesday the state had not tried to rebut Williams’ testimony about the speed of death following an execution or attempted to depose him. 

Lee’s attorneys also cited testimony from former Corrections Commissioner John Hamm, who said the department could find and modify a space for a firing squad execution if authorized and funded by the Legislature.

“This case is the first trial — on a full evidentiary record — to address the constitutionality of nitrogen asphyxiation as a method of execution,” the brief said. “This Court’s decision will affect not only Mr. Lee’s case, but also multiple pending challenges to Alabama’s use of nitrogen asphyxiation. The public has a strong interest in making sure that Alabama’s method of execution comports with the Constitution.”

Jordan and Kidd sided with Lee’s attorneys, citing the U.S. Supreme Court’s ruling in Bucklew v. Precythe, a 2019 case where the court ruled that condemned inmates challenging a method of execution for causing excessive pain must show alternative methods exist that would cause less pain. The judges noted language in Bucklew that said an alternative an inmate may offer “is not limited to choosing among those presently authorized by a particular State’s law.”

“The Commissioner has not substantially shown that any difficulties with retrofitting an execution chamber and assembling a team of five marksmen would make this method unfeasible or unimplementable,” they wrote. “Mr. Lee admitted into evidence Utah’s firing squad protocol, and the district court credited his expert’s testimony examining how a similar protocol would be feasible in Alabama.”

Luck wrote in dissent that the state could not “relatively easily and reasonably quickly carry out a firing squad execution,” saying the state would need time to build a facility and train individuals.

“The state would have to build this structure from scratch because its current facility—Holman Correctional Facility—doesn’t have these necessary elements,” he wrote. “And the state would then have to test the new elements before they could become operational.”

A spokeswoman for the Alabama Department of Corrections said in an email Wednesday the department was “proceeding as normal” but did not provide details.