Federal Appeals Court: Alabama’s use of nitrogen gas for executions needs more study
FILE- Alabama’s lethal injection chamber at the Holman Correctional Facility in Atmore, Ala. (AP Photo/Dave Martin, File)
MONTGOMERY, Ala. (AP) — A federal appeals court says Alabama’s use of nitrogen gas to execute criminals needs more study of whether it violates a constitutional ban on cruel and unusual punishment.
The state first used nitrogen for capital punishment in 2024, and the ruling could affect Alabama’s next scheduled execution on Thursday. The method involves strapping a respirator to the person’s face and replacing breathable air with pure nitrogen, causing death from lack of oxygen.
Last night, the three-judge panel reversed a judge’s finding from last month that said the nitrogen method does not violate the U.S. Constitution’s ban on cruel and unusual punishment and remanded the case for additional consideration.
The ruling came in a lawsuit filed last year by Jeffery Lee, a man on death row who is scheduled to be executed with nitrogen on Thursday at Holman Prison in Atmore.
Lee was convicted of capital murder for killing Jimmy Ellis and Elaine Thompson on Dec. 12, 1998, near the town of Orrville in Dallas County. Prosecutors said Lee entered a pawn shop with a sawed-off shotgun and fatally shot Jimmy Ellis, the owner of the store, and Elaine Thompson, a store employee.
The panel stopped short of staying his execution. However, the panel asked the judge to consider whether his proposed alternative of a firing squad was feasible.
The U.S. Supreme Court requires a two-prong test for people challenging the constitutionality of an execution method. They must show the method provides a substantial risk of superadded pain and that a feasible alternative method is available. The appeals court said Lee met the first test but sent it back to the trial court to consider the second.
The appeals panel raised concerns about the nitrogen method and how long it might take the subject to lose awareness.
“In our view, the overall suffering described by the district court, which lasts for one to three minutes, presents a substantial risk of serious harm over and above death itself,” the panel wrote. “Counting 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 state has maintained the method is constitutional.
Opponents of the method cheered the decision.
“For the first time a court has acknowledged what I and so many others have seen with our own eyes. Nitrogen executions are a unique form of horror,” said the Rev. Jeff Hood, who was the spiritual adviser at two nitrogen executions.
Nitrogen has been used in eight executions nationally — seven times in Alabama and once in Louisiana. Lee’s attorneys argued it causes excessive suffering. Alabama’s last nitrogen execution took more than 30 minutes to complete.
A jury voted 7-5 that Lee should receive a sentence of life imprisonment. However, a judge overrode that recommendation and sentenced Lee to death. Alabama in 2017 ended the practice of judicial override and no longer allows a judge to disregard a jury’s sentencing decision in death penalty cases.
The ruling came several hours after a vigil was held at the Alabama Capitol urging the governor to reduce Lee’s sentence to life imprisonment.
Alabama Attorney General Steve Marshall said he opposed the clemency request.
“The people of Alabama have not forgotten Jimmy and Elaine. I have not forgotten them,” Marshall said. “Anything short of carrying out the sentence imposed by the court falls short of justice for the victims, and that is not what victims of this state deserve.”
(Copyright 2026 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)
