A federal judge has upheld Alabama’s nitrogen hypoxia execution protocol, ruling that death row inmate Jeffery Lee failed to prove the method constitutes cruel and unusual punishment under the Eighth Amendment.
In a 58-page opinion issued Thursday, U.S. District Judge Emily C. Marks acknowledged that inmates executed under Alabama’s nitrogen hypoxia protocol experience suffering, but concluded Lee did not show that suffering exceeds what is constitutionally permissible in carrying out a death sentence.
“While Lee has shown that executions under the Protocol involve some suffering, on this record he has failed to prove that the Protocol causes more than ‘the necessary suffering involved in any method employed to extinguish life humanely,’” Marks wrote. “Because Lee has not shown that the Protocol cruelly superadds pain, his claim that the Protocol violates the Eighth Amendment fails as a matter of law.”
The decision clears the way for Lee’s execution, which is scheduled during a 30-hour window beginning June 11. Lee was convicted of capital murder in the 1998 killings of Jimmy Ellis and Elaine Thompson during an attempted robbery in Dallas County. According to the ruling, Lee entered the pawn shop with a sawed-off shotgun and “without warning, began firing,” killing Ellis and Thompson and wounding employee Helen King, who survived and alerted authorities.
The case marked the first full trial examining the constitutionality of nitrogen hypoxia executions, which Alabama first used in January 2024. Lee elected nitrogen hypoxia as his execution method in 2018 after Alabama authorized the procedure.
Nitrogen hypoxia causes death by replacing air with nearly pure nitrogen, depriving the brain of oxygen. Under Alabama’s protocol, a mask is secured to the inmate’s face and nitrogen gas flows for at least 15 minutes or five minutes after a flatline indication on the inmate’s EKG.
Lee argued that the protocol causes inmates to suffer prolonged “air hunger.” Marks summarized Lee’s claim by writing that nitrogen hypoxia “triggers inmates’ survival instincts to breathe oxygen while also preventing them from doing so.”
The opinion further discusses air hunger, which Marks described as the most severe form of breathing distress. Evidence presented at trial showed patients and research subjects have compared the sensation to being “starved for air,” experiencing “a feeling of suffocation” or a “smothering feeling akin to drowning.”
Marks found credible testimony from Lee’s experts that inmates likely experience severe air hunger during nitrogen hypoxia executions.
“Notwithstanding this finding, the Court credits Dr. Schwartzstein and Dr. Bastarache’s opinion that inmates executed under the Protocol likely experience severe air hunger, which evokes distress and anxiety,” Marks wrote.
The judge also noted that air hunger can produce “extreme emotional distress, panic, anxiety, and fear” and that many people find it “worse than pain” because it is associated with the fear of dying. Still, Marks concluded that evidence of suffering alone was insufficient to establish an Eighth Amendment violation. Lee was required to show that the protocol causes severe pain “well beyond what’s needed to effectuate a death sentence.”
“The Constitution does not guarantee inmates a painless death,” Marks wrote.
The ruling repeatedly relied on U.S. Supreme Court precedent holding that capital punishment necessarily involves some suffering and that the Eighth Amendment prohibits only punishments that “superadd” terror, pain or disgrace beyond what is required to carry out a death sentence.
Marks noted that the parties agreed the protocol causes some level of air hunger and distress but disagreed about its severity and duration. The state’s expert, Dr. Joseph Antognini, testified that inmates lose consciousness within roughly 60 to 75 seconds and would experience only brief distress. Lee’s experts maintained that inmates remain conscious much longer and experience severe air hunger before death.
“Lee’s claim faces an exceedingly high bar,” Marks wrote.
Ultimately, Marks concluded Lee had not met the high legal burden required to invalidate an execution method. Lee appealed the decision later Thursday.
