On June 9, 2026, an Alabama federal district judge “permanently enjoined” state officials from using nitrogen gas to execute death-sentenced prisoner Jeffery Lee after finding that the state’s nitrogen execution protocol violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Judge Emily Marks issued her ruling after the U.S. Court of Appeals for the Eleventh Circuit found the protocol unconstitutional and remanded the case for consideration of Mr. Lee’s proposed alternative method of execution — the firing squad. Judge Marks first found that Alabama’s nitrogen gas protocol “presents a ‘substantial risk of serious harm’ — severe pain over and above death itself.” She then found that Mr. Lee’s firing squad proposal is “feasible, readily implemented, and significantly reduces the substantial risk of serious harm posed by” Alabama’s nitrogen protocol. Alabama appealed the district court’s decision; however, the same Eleventh Circuit panel upheld the lower court’s ruling by a vote of 2:1. No stay of execution is in place, however; Mr. Lee’s execution remains scheduled for June 11, 2026.
Alabama state officials have now filed a petition for certiorari at the U.S. Supreme Court, asking it to allow them to use nitrogen gas to execute Mr. Lee.* While the Supreme Court has never invalidated a method of execution as unconstitutional, it has also never considered the constitutionality of nitrogen gas executions.
To prevail on an Eighth Amendment challenge to an execution method, the U.S. Supreme Court requires prisoners to demonstrate two things: first, that an execution method poses “a substantial risk” of causing severe pain, and second, to identify a reasonable, available alternative method of execution which significantly reduces the risk of severe pain. The Eleventh Circuit conclusion that Alabama’s protocol constitutes “a substantial risk” of pain, noted that “[c]ounting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.” The panel added that “[s]uch suffering, we believe, is over and above the mental distress that typically accompanies the knowledge of impending death.”
Following the appeals court’s direction, Judge Marks found that Alabama “failed to articulate a legitimate penological reason for refusing to adopt Lee’s proposed alternative.” She concluded, “[t]herefore, Lee has shown by a preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment.” Judge Marks wrote that while her order blocks the state from using its nitrogen gas protocol, her ruling “does not disturb the state’s ability to administer capital punishment,” as the state offers two other authorized methods of execution: lethal injection and the electric chair.
Judge Marks’ ruling blocks Alabama’s use of its nitrogen gas protocol. Nitrogen gas has been used in eight executions since 2024 — seven times in Alabama and once in Louisiana. The method involves strapping a gas mask to the prisoner’s face and replacing breathable air with pure nitrogen gas, causing death from a lack of oxygen. Witnesses at all of the executions using nitrogen gas have noted that prisoners appear to be in pain and distress.
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 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 said in a video submitted as part of his clemency campaign that they are frustrated with the trial judge’s decision to overrule their recommendation for a life sentence.
*This story will be updated on June 12, 2026, to reflect the outcome of the state’s appeal to the Supreme Court.
Kim Chandler, Judge bars Alabama nitrogen gas execution, says method is unconstitutionally cruel, Associated Press, June 9, 2026; Ralph Chapoco, Federal judge blocks use of Alabama’s nitrogen gas execution protocol, News From the States, June 9, 2026.
