A federal judge on Thursday ruled that execution by nitrogen gas does not violate the constitutional ban on cruel and unusual punishment, rejecting an Alabama inmate's claim that it causes excessive suffering. U.S. District Judge Emily C. Marks issued the ruling after conducting the first bench trial in the country to examine the constitutionality of the execution method, which has now been used to put eight people to death—seven in Alabama and one in Louisiana.
The decision clears the way for Alabama and other states that have authorized nitrogen gas as an execution method to continue using it. The protocol involves strapping a respirator mask to the inmate's face and replacing breathable air with pure nitrogen gas, causing death through oxygen deprivation. The first executions using this method began in 2024.
What the Left Is Saying
Death penalty opponents argued that the ruling failed to adequately account for the suffering involved in the execution method. Abraham Bonowitz, executive director of Death Penalty Action, a group that opposes capital punishment, said the process constitutes torture regardless of its legal status. "The real torture of the death penalty is in the decades of waiting," Bonowitz stated. "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." He added that inmates like Lee would not face execution today because Alabama abolished judicial override in 2017—a process by which judges could disregard jury recommendations for life imprisonment and impose death sentences instead. Critics had hoped a fuller examination of Alabama's protocol would halt its use, arguing the method causes unnecessary suffering.
What the Right Is Saying
Alabama Attorney General Steve Marshall praised Judge Marks' decision as a vindication of state authority on capital punishment issues. "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." State attorneys had argued the protocol is humane because inmates lose consciousness quickly. The judge acknowledged Lee faces a high legal bar because the U.S. Supreme Court has yet to find any state's execution method qualifies as cruel and unusual under the Eighth Amendment.
What the Numbers Show
According to the Death Penalty Information Center, five states have authorized nitrogen gas as an execution method, though only two—Alabama and Louisiana—have actually used it. Eight people total have been executed using this protocol since 2024: seven in Alabama and one in Louisiana. Judge Marks' ruling acknowledged that evidence shows Alabama's protocol "likely causes severe air hunger—the most severe form of breathing discomfort—for one to three minutes" during the execution process. The state's last nitrogen gas execution took more than 30 minutes to complete. Jeffery Lee, the plaintiff who filed the lawsuit challenging the method, is 58 years old and was convicted of capital murder for killing two people—a pawn shop owner and an employee—in 1998 near Orrville, Alabama.
The Bottom Line
Lee's attorneys have indicated they plan to appeal the ruling, meaning the legal battle over nitrogen gas executions could continue through federal courts. Lee remains scheduled for execution by nitrogen gas on June 11 at a south Alabama prison. The judge's decision sets a precedent as the most comprehensive judicial examination of the method to date, potentially influencing how other states proceed with similar protocols. What happens next will likely depend on whether higher courts agree to hear the case and what evidence additional challengers present.