Federal judge allows Alabama nitrogen gas execution to go forward

A federal district court Friday denied an Alabama death row inmate’s request to delay his scheduled June 11 execution, saying the pain he could experience was constitutional.

U.S. District Court Judge Emily Marks wrote that Jeffrey Lee, 50, scheduled to be executed for his role in the murder of Jimmy Ellis and Elaine Thompson in 1998, failed to show by a preponderance of the evidence that the ADOC’s nitrogen hypoxia execution protocol causes severe pain or suffering ‘well beyond what’s needed to effectuate a death sentence,’” Marks said in her ruling.

She added that “It also follows that, on this record, Lee has failed to show by a preponderance of the evidence that the ADOC’s nitrogen hypoxia protocol violates the Eighth Amendment.”

Marks did not deny that Lee would experience pain during the process, but said it did not reach the level beyond what is required to put him to death and did not violate his constitutional right against cruel and unusual punishment.

A message was sent to the attorneys representing Lee on Monday seeking comment.

Lee would be Alabama’s first execution in 2026. Charles “Sonny” Burton was scheduled to be executed in March, but Gov. Kay Ivey commuted his sentence days before the execution, citing that the person who pulled the trigger was eventually sentenced to death after he won his appeal.

According to court documents, Lee entered an Orrville pawn shop owned by Ellis December 1998 and asked King, one of the employees, to see wedding rings. Afterward, he told King he did not have the money to purchase the rings. Lee returned to the shop later with a shotgun and shot King, Ellis and Thompson, another employee.

Lee alleged in his lawsuit that the nitrogen gas procedure that the state plans to use is unconstitutional because it will expose him to a high level of pain for a prolonged period.

“Because nitrogen hypoxia triggers inmates’ physiological need to breathe oxygen while also preventing them from doing so, Lee claims that this method of execution is unique, and uniquely distressing, and constitutes cruel and unusual punishment,” Marks said in her ruling. “Lee further claims that inmates experience air hunger for six to twelve minutes — although inmates are unconscious or ‘unawake; for three to five minutes of that time.”

Lee’s attorneys cited medical experts who said Lee would suffer for a prolonged period without oxygen. Marks credited Joseph F. Antognini, an anesthesiologist who testified for the state, said that a person will struggle to breathe for 60-75 seconds before losing consciousness.

“Based on his opinion that inmates are rendered unconscious within approximately sixty to seventy-five seconds after the nitrogen gas is turned on, Dr. Antognini claims that ‘any distress or suffering’ from air hunger ‘is going to be very, very brief if at all present because of the rapid onset of unconsciousness,’” Marks said in her ruling.

Marks said in her ruling that people who are executed with the nitrogen gas protocol that ADOC plans to use likely suffer from not being able to breathe for one to three minutes. And during that time, a person will experience “emotional pain, anxiety, and dread.”

“But the anxiety evoked by air hunger remains inextricably intertwined with the fear of dying—and in the execution setting, the fact of dying and the inmate’s conscious awareness that he is dying,” Marks said in her order.

Marks wrote the anxiety evoked by air hunger—lasting not significantly more than one to three minutes—is more an ‘inescapable consequence of death’ than ‘superadded’ pain well beyond what’s needed to effectuate a death sentence.”

Recent U.S. Supreme Court rulings limit claims of cruel and unusual punishment from executions only if the pain they experience is extreme or excessive.

Attorneys for Lee filed notice that they plan to appeal the ruling to the 11th Circuit Court of Appeals.