U.S. District Judge Emily C. Marks on Tuesday permanently blocked Alabama from putting death row inmate Jeffrey Lee to death by nitrogen gas, ruling the execution method violates the Eighth Amendment’s ban on cruel and unusual punishment. Lee, 49, had been scheduled to die Thursday at Holman Correctional Facility in Atmore, just days after an appeals court reversed Marks’ own earlier finding that the method passed constitutional muster.
The ruling halts what would have been the ninth nitrogen gas execution in the United States and hands death-penalty opponents a significant legal victory. But Marks made clear the order is narrow: it blocks only the nitrogen protocol, not Lee’s execution itself. Alabama can still put him to death by lethal injection or the electric chair.
Alabama Attorney General Steve Marshall’s office has already filed an appeal, Fox News reported. The case now appears headed toward the U.S. Supreme Court, which has never struck down a state execution method as unconstitutional.
The legal path to Tuesday’s order was unusual. Marks initially found Alabama’s nitrogen hypoxia protocol constitutional. A three-judge panel from the 11th U.S. Circuit Court of Appeals reversed that finding on Monday, concluding the method carried “a substantial risk of serious harm.”
The appeals panel zeroed in on one detail: the roughly three minutes it could take an inmate to lose awareness after nitrogen replaces breathable air. The judges called that time frame “intolerable,” citing “the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.”
With the appellate reversal in hand, Marks issued her permanent injunction the next day. She wrote that Lee had met his burden of proof.
“Therefore, Lee has shown by a preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
The method works by strapping a respirator onto the inmate’s face and replacing breathable air with pure nitrogen gas, causing death by oxygen deprivation. Alabama began using it in January 2024, when convicted killer Kenneth Eugene Smith became the first person in the country executed by nitrogen. Since then, seven nitrogen executions have taken place in Alabama and one in Louisiana.
What makes Marks’ ruling notable, and potentially frustrating for both sides, is how candidly she acknowledged the legal dead end that capital punishment litigation is approaching. She pointed out that Lee’s preferred execution method, firing squad, would almost certainly face its own constitutional challenge the moment Alabama adopted it.
“Were Alabama to adopt firing squad as a method of execution, that method would likely be challenged as well. Indeed, there is likely no method, no matter how humane, that would be immune to constitutional challenge. But the Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality.”
That passage deserves attention. Marks is not an abolitionist crusader. She explicitly ruled that Lee is “not entitled to an injunction barring the state from executing him” by lethal injection or the electric chair. She followed the appellate court’s directive on nitrogen gas specifically, nothing more.
The distinction matters. Opponents of the death penalty celebrated the ruling as a breakthrough. But Marks herself warned that the legal treadmill, challenge one method, adopt another, face a new challenge, has no obvious stopping point. The Constitution permits capital punishment. It does not promise a painless version of it.
Lost in the legal maneuvering are the victims. Prosecutors said Lee entered Jimmy’s Pawnshop near Orrville, Alabama, with a sawed-off shotgun on December 12, 1998, and shot owner Jimmy Ellis and employee Elaine Thompson during a robbery. Both died. Lee was convicted of two counts of capital murder. AP News reported that Alabama Gov. Kay Ivey had set Lee’s nitrogen gas execution date for June 11.
A jury voted 7-5 that Lee should be sentenced to life imprisonment. A judge overrode that recommendation and imposed death. Alabama later ended the practice of allowing judges to disregard a jury’s sentencing decision in death penalty cases, but Lee’s sentence stood.
That procedural history adds a layer of complexity. Lee sits on death row under a sentencing framework the state itself abandoned. It does not make him innocent. It does make the legal landscape around his case unusually tangled.
Courts across the country continue to grapple with the boundaries of judicial intervention in criminal cases. A South Carolina judge recently blocked the execution of a convicted cop killer, illustrating how frequently courts now step between states and their ability to carry out lawful sentences.
Death-penalty critics seized on the ruling. Bernard Harcourt, a Columbia University Law School professor who represents other Alabama inmates challenging nitrogen execution, told the Associated Press the decision validated their arguments.
“Three minutes of conscious suffocation is torturous. If that doesn’t violate the constitution, let alone international law, nothing would.”
Rev. Jeff Hood, who served as a spiritual adviser at two nitrogen executions, went further, saying he hoped the ruling would end the method entirely. “I pray that we are witnessing the collapse of this horrific method nationwide,” Hood said.
Alabama officials have maintained that the nitrogen execution method is constitutional. Marshall’s office filed its appeal without public comment included in the available reporting, but the speed of the filing signals the state intends to fight the ruling aggressively.
The broader pattern of federal judges blocking state enforcement actions, whether in immigration policy or criminal justice, continues to draw scrutiny from conservatives who see an expanding judicial veto over democratic governance.
The case now sits in legal limbo. Lee’s scheduled Thursday execution is off. Alabama can appeal, seek an emergency stay, or attempt to reschedule the execution under a different method. The New York Post noted that the order blocks only nitrogen gas, leaving lethal injection and the electric chair available.
Lee himself has said he prefers firing squad, a method Alabama does not currently authorize. Marks acknowledged that Alabama could adopt it, but predicted it would face immediate legal challenge. The cycle continues.
The Supreme Court has never declared a state execution method unconstitutional. If Marshall’s appeal reaches the justices, they would confront that question directly for the first time. The stakes extend well beyond Alabama. Eight executions by nitrogen gas have already occurred. Multiple inmates in the state are challenging the method in separate lawsuits.
Meanwhile, Lee remains at Holman Correctional Facility. Ellis and Thompson remain in the ground. And the legal system continues to spend decades refining the manner of a punishment it has already approved in principle. Judicial decisions in high-profile criminal cases, from the Supreme Court’s handling of Richard Glossip’s Oklahoma murder conviction to state-level execution disputes, show no sign of slowing down.
Protesters gathered outside the Capitol in Montgomery on Monday to oppose the execution. Inside the courtroom, a federal judge agreed that one method of carrying it out fails constitutional scrutiny. But she also said something the protesters may not have wanted to hear: no method ever will satisfy every challenge, and the Constitution does not require one that does.
The question for the Supreme Court is whether the judiciary will keep whittling away at how states carry out lawful sentences until there is nothing left, or whether it will draw a line. The families of Jimmy Ellis and Elaine Thompson have waited twenty-seven years. When the system struggles to hold even suspects accountable before trial, the delay in delivering a sentence already imposed says something about whose interests the courts prioritize.
Justice delayed is not justice reformed. It is justice denied, to the people who were promised it a generation ago.
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