On May 28, 2026, an Alabama federal district judge ruled that nitrogen gas executions are constitutional and do not violate the Eighth Amendment’s protection against cruel and unusual punishment. In the first federal bench trial examining nitrogen gas as a method of execution, U.S. District Judge Emily C. Marks found that death-sentenced prisoner Jeffery Lee “failed to prove that [Alabama’s gas] Protocol causes more than ‘the necessary suffering involved in any method employed to extinguish life.’” Alabama carried out its first nitrogen gas executions in 2024, and in August 2025, Mr. Lee filed a lawsuit challenging the constitutionality of Alabama’s nitrogen gas execution protocol, requesting the court issue an injunction preventing the state from executing him by nitrogen gas or any other method other than his requested method: the firing squad. Judge Marks’ ruling clears the way for Alabama to continue its use of nitrogen gas in executions, including in Mr. Lee’s execution, which is scheduled for June 11, 2026.
Judge Marks acknowledged that prisoners executed under Alabama’s nitrogen gas protocol will likely suffer from “severe air hunger” and will struggle to breathe, experiencing emotional pain, anxiety, and dread. Despite this finding, the court concluded that this suffering would not reach the constitutional threshold of ‘super-adding’ pain and is rather an “inescapable consequence of death.” Judge Marks notes that nitrogen gas executions are not “like drawing and quartering, public dissection, burning at the stake, crucifixion… — methods that involve severe pain or suffering ‘well beyond what’s needed to effectuate a death sentence.’” Rather, nitrogen gas executions, much like other employed methods of execution (lethal injection, firing squad, electrocution…), involve only the “necessary suffering involved in any method employed to extinguish life humanely.” Judge Marks noted that “[t]he Eighth Amendment ‘does not demand the avoidance of all risk of pain in carrying out executions.’”
Mr. Lee was convicted and sentenced to death for the 1998 murders of Jimmy Ellis and Elaine Thompson during a robbery in Orrville, Alabama. At trial, Mr. Lee’s jury voted 7 – 5 to recommend a life sentence without the possibility of parole. Under Alabama’s judicial override law, Mr. Lee’s trial judge rejected the jury’s recommendation and instead imposed a death sentence. In 2017, Alabama abolished the practice of judicial override; however, the law did not apply retroactively. Mr. Lee is among the more than two dozen prisoners still sentenced to death in Alabama as a result of judicial override, the majority of whom had life sentences from juries overridden by judges. Two jurors from Mr. Lee’s original trial have come forward in a video submitted as part of his clemency campaign, noting frustration with the trial judge’s ultimate decision to overrule their recommendation.
At trial, Mr. Lee’s counsel failed to present critical mitigating evidence, including evidence surrounding a traumatic brain injury Mr. Lee sustained during a car accident, severe childhood abuse, untreated mental illness, and substance abuse that began in his youth. In the clemency video, Dr. Rachel Fusco, said without intervention following these issues, “it’s like some powder keg that leads to the worst outcomes.” Even without this mitigating evidence, Mr. Lee’s jury found that he should be sentenced to life without the possibility of parole, not executed.
Five states, including Alabama, have explicitly authorized nitrogen gas as a method of execution. Alabama has carried out seven executions using nitrogen gas, and Louisiana has carried out one execution using nitrogen gas.
Attorneys for Mr. Lee have appealed Judge Marks’ decision and will have an oral argument hearing in front of the U.S. Court of Appeals for the Eleventh Circuit ahead of Mr. Lee’s June 11 execution date.
Kim Chandler, Federal judge upholds constitutionality of nitrogen gas executions, Associated Press, May 28, 2026.
