First full trial examines execution method used eight times
U.S. District Judge Emily C. Marks ruled Thursday that execution by nitrogen gas does not violate the constitutional ban on cruel and unusual punishment, rejecting claims by Alabama death row inmate Jeffery Lee that the method causes excessive suffering. The decision came after the first bench trial in the country to examine the constitutionality of nitrogen hypoxia, which has now been carried out eight times, seven in Alabama and one in Louisiana.
"While Lee establishes that death by nitrogen hypoxia involves some suffering, he fails to show that the protocol is cruel and unusual in violation of the Eighth Amendment," Marks wrote in her ruling.
How nitrogen gas executions work
The execution method involves strapping a respirator to an inmate's face and replacing breathable air with pure nitrogen gas, causing death from lack of oxygen. During nitrogen gas executions, inmates have displayed various levels of shaking, though attorneys for both the state and inmates have disagreed on whether these movements are involuntary or indicate suffering.
Marks wrote the evidence shows Alabama's protocol "likely causes severe air hunger, the most severe form of breathing discomfort, for one to three minutes" but does not violate the Eighth Amendment. Alabama's last nitrogen gas execution took more than 30 minutes to complete.
Lee's case and sentencing history
Lee, 58, was convicted of capital murder for killing Jimmy Ellis and Elaine Thompson on December 12, 1998, near Orrville, Alabama. Prosecutors said Lee entered a pawn shop with a sawed-off shotgun and fatally shot Ellis, the store owner, and Thompson, a store employee.
A jury voted 7-5 that Lee should receive life imprisonment. However, a judge overrode that recommendation and sentenced him to death. Alabama abolished judicial override in 2017 and no longer allows judges to disregard jury sentencing decisions in capital cases. Lee is scheduled to be executed by nitrogen gas on June 11 at a south Alabama prison.
State and opposition responses
Alabama Attorney General Steve Marshall praised the ruling. "After the first full trial on nitrogen hypoxia in the entire country, the district court found it to be constitutional," Marshall said. "The district court considered all the evidence and concluded that nitrogen hypoxia is not cruel and unusual, affirming that the question of capital punishment belongs to the people and their representatives, not the courts, to resolve."
Abraham Bonowitz, executive director of Death Penalty Action, an organization that opposes capital punishment, offered a different perspective. "The real torture of the death penalty is in the decades of waiting. With what we know about each of the available methods of being killed in Alabama or in the U.S., I can't imagine anyone choosing conscious suffocation," Bonowitz said.
Lee's legal team indicated in court filings that they are appealing the decision. Five states have authorized nitrogen gas as an execution method, though only two have used it.
