The 11th U.S. Circuit Court of Appeals said the amount of time it takes for an inmate to die using the nitrogen gas method is “intolerable,” but stopped short of this week’s execution.
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A federal appeals court has ruled that Alabama’s relatively new nitrogen gas execution method could inflict cruel suffering on death row inmates who say they would be better off being killed by a firing squad.
Citing lower court decisions, the 11th Circuit Court of Appeals said in a Monday, June 8, decision that the nitrogen gas method causes inmates “severe air starvation and associated psychological distress, anxiety, physiological stress, and physical discomfort” for up to three minutes.
The Court of Appeal found that such “suffering… poses a significant risk of harm more serious than death itself.” “Counting to 60 or 180 seconds is not something that can be done quickly, and that time frame is constitutionally intolerable given the suffering that would occur under Alabama’s nitrogen hypoxia protocol.”
The ruling stems from an appeal filed by Jeffrey Lee, an Alabama death row inmate scheduled to be executed by nitrogen gas on Thursday, June 11, for a series of murders stemming from a 1998 pawn shop robbery.
The ruling was a victory for death penalty opponents who have fought against the use of nitrogen gas, but the court stopped short of granting Lee a suspended sentence or banning the method altogether. Instead, the court sent the case back to a district judge to consider the possibility of execution by firing squad, at Lee’s request.
Here’s what you need to know:
Why shouldn’t execution methods be cruel?
Death row inmates are not guaranteed a painless death, but the U.S. Constitution requires that death row inmates be free from “cruel and unusual punishment.” That means it can be painful, but the law says it shouldn’t be unnecessarily excessive.
Defense attorneys, opponents of the death penalty, and some witnesses to nitrogen gas executions argue that nitrogen gas executions amount to torture and are therefore a clear violation of the Constitution.
Alabama was the first state in the nation to execute the nitrogen gas death penalty on Kenneth Eugene Smith in 2024. Since then, the state has executed six other inmates this way, and Louisiana has also used the method once.
With this method, the executioner straps the inmate to a stretcher with chest and shoulder harnesses and places a mask over his face. Ultra-pure nitrogen gas flows into the mask and displaces it until there is no more breathable air left. The prisoner loses consciousness and dies.
Witness accounts of Alabama’s first four executions included “suffering, including several minutes of conscious fear, trembling, gasping, and other evidence of pain,” Louisiana Chief District Judge Shelly Dick wrote last year when addressing executions in that state. Witnesses saw the inmates “struggling” under their restraints, “convulsing and shaking violently for four minutes,” writhing, spitting and “losing consciousness and struggling for life,” she wrote.
An Alabama judge agreed last week that Lee showed he could feel pain during this week’s execution, but not to the extent that it would violate the Constitution.
What is happening now?
The Death Penalty Intervention Project, an anti-death penalty group that has been fighting nitrogen gas executions, called Monday’s ruling “the most significant legal development in the fight against this method of killing.”
The group called on Alabama to halt Lee’s execution and for Governor Kay Ivey to “recognize that the state is employing a technique that a federal court has found is likely to cause conscious asphyxiation for several consecutive minutes.”
“Most urgently, we pray that this sentence is enough to save Jeffrey Lee’s life,” the group said.
Neither Ivey’s office nor Lee’s attorney immediately responded to USA TODAY’s requests for comment.
Lee’s execution will be the first in Alabama this year. Another inmate, Charles Lee “Sonny” Burton, was scheduled to be executed by nitrogen gas in March, but Ivey commuted his death sentence to life in prison just two days before the execution. This decision had nothing to do with the method of execution. Ivey said it was “unjust” to take the life of Barton, who was the triggerman in the 1991 AutoZone robbery.
This is the second time a Republican governor has commuted an inmate’s sentence in his nine years in office. She presided over 25 executions.
Amanda Lee Myers is a senior crime reporter covering capital punishment, cold cases and breaking news for USA TODAY. Follow @amandaleeusat on X.
