US appeals court raises concerns about Alabama’s use of nitrogen gas for
executions
[June 09, 2026]
By KIM CHANDLER
MONTGOMERY, Ala. (AP) — Alabama’s use of nitrogen gas to put people to
death needs more study of whether it violates a constitutional ban on
cruel and unusual punishment, a federal appeals court decided Monday.
The state first used nitrogen for capital punishment in 2024, and the
ruling could upend 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.
The three-judge panel on Monday night reversed a judge’s May finding
that 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 a south Alabama prison.
The panel stopped short of staying Lee’s planned 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 Alabama Attorney General’s Office did not immediately issue a
comment on the decision. 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.
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Abraham Bonowitz, of the group Death Penalty Action, leads a
demonstration outside the Capitol in Montgomery, Ala., on Monday,
June 8, 2026, to oppose an upcoming execution in Alabama. (AP
Photo/Kim Chandler)
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.
Lee was convicted of two counts of capital murder for killing Jimmy
Ellis and Elaine Thompson while robbing a pawn shop on Dec. 12,
1998. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off
shotgun and shot Ellis, the owner of the store, and Thompson, a
store employee.
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.”
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