Federal judge orders stop to nitrogen gas execution in Alabama

A federal Alabama judge has prohibited the state from executing an inmate this week using the controversial new method of nitrogen gas, ruling that it amounts to cruel and unusual punishment in violation of the U.S. Constitution.

U.S. District Judge Emily Marks issued the ruling on Tuesday, June 9, that could stop the execution of Alabama death row inmate Jeffrey Lee. Lee is scheduled to be executed on Thursday, June 11, for a double murder during a pawn shop robbery in 1998.

The ruling also stops the state of Alabama from executing other inmates with the method, though no others are scheduled this year, and the state is expected to appeal the ruling, which could put the matter in front of the U.S. Supreme Court.

The office of Alabama Gov. Kay Ivey did not immediately respond to a request for comment from USA TODAY.

Marks’ ruling stems from a hearing about how much pain inmates experience during a nitrogen gas execution. She concluded that they experience up to three minutes of “severe air hunger” resulting in emotional distress, anxiety, physiological stress, and physical discomfort.

The U.S. Constitution does not guarantee a death row inmate a pain-free death but does require executions to be free of cruel and unusual punishment.

Defense attorneys, death penalty opponents and some witnesses to nitrogen gas executions argue it amounts to torture and so is a clear constitutional violation.

Alabama was the first state in the nation to carry out a nitrogen gas execution, that of Kenneth Eugene Smith in 2024. Since then, the state has executed six other inmates with the method, and Louisiana has used it once.

Under the method, executioners strap inmates to a gurney with chest and shoulder harnesses and attach a mask to his face. Ultra-high-purity nitrogen gas flows into the mask, and that displaces breathable air until none is left. The inmate loses consciousness and dies.

Witness accounts from the first four Alabama executions describe “suffering, including conscious terror for several minutes, shaking, gasping, and other evidence of distress,” Louisiana Chief District Judge Shelly Dick wrote last year when addressing the method in her state. The witnesses saw inmates “writhing” under their restraints, “vigorous convulsing and shaking for four minutes,” heaving, spitting, and a “conscious struggling for life,” she wrote.

Initially, Marks ruled last week that Lee showed he was likely to experience pain during his execution but not to an unconstitutional degree. The 11th U.S. District Court of Appeals disagreed with her on Monday and sent the case back to her for reconsideration.

Lee’s execution would be the first in Alabama this year. Another inmate, Charles Lee “Sonny” Burton, had been set to be executed by nitrogen gas in March, but Ivey commuted his death sentence to life just two days before the execution. The decision had nothing to do with the execution method. Ivey said it would be “unjust” to take Burton’s life when he wasn’t the triggerman in an AutoZone robbery gone bad in 1991.

It was the second time the Republican governor has commuted an inmate’s sentence in her nine years in office. She has presided over 25 executions.

Amanda Lee Myers is a senior crime reporter who covers the death penalty, cold cases and breaking news for USA TODAY. Follow her on X at @amandaleeusat.