“Capital punishment is neither cruel nor unusual.” Michael J. Knowles –
1998 – State of Alabama – Jeffrey Lee is arrested for murder. Prosecutors say that he shot and killed Jimmy Ellis, a store owner, and Elaine Thompson, an employee, while attempting to rob a business establishment. Lee is later convicted of the double murder.
A jury votes 7-5 that Lee should receive a sentence of life imprisonment. However, a judge overrides that recommendation and sentences Lee to death. (This would be an illegal sentence if the offenses were committed today. The law no longer allows a judge to possess such broad power over life and death.)
2026 – Lee has been incarcerated on Alabama’s death row for more than two decades. So far, he has cheated the executioner. But, it appears his time has come. Or, maybe not.
Recently, Lee was scheduled to die by nitrogen hypoxia where a condemned inmate is forced to breathe pure nitrogen through a gas mask until they suffocate from the lack of oxygen.
His execution has been placed on hold because a federal judge recently banned Alabama from executing a death row inmate by nitrogen gas, reversing a previous opinion and concluding that the controversial execution method of using poisonous gas, which was used in concentration camps during World War II, is unconstitutionally cruel.
In the ruling, U.S. District Judge Emily Marks said Alabama’s nitrogen gas protocol violates inmates’ rights under the Eighth Amendment. “Lee has shown by a preponderance of evidence that the Protocol constitutes cruel and unusual punishment,” Marks wrote.
After hearing testimony from experts and lay witnesses during an April bench trial that was the first to weigh the constitutionality of Alabama’s nitrogen hypoxia protocol, the court found inmates executed by nitrogen gas likely experience “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort” for at least one to three minutes before asphyxiation occurs.
“There is, in other words, a substantial risk of serious harm. The risk is not conjectural, speculative, or doubtful,” the opinion read. “Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would take place under Alabama’s nitrogen protocol.”
To successfully argue that an execution method violates the Eighth Amendment, the Supreme Court has required inmates to demonstrate how one particular method poses “a substantial risk” of causing them severe pain. They are also required to offer a reasonable alternative method by which the state could execute them instead.
Lee proposes the state execute him using a firing squad as an alternative to nitrogen hypoxia, which Marks said, “is feasible, readily implemented, and significantly reduces the substantial risk of serious harm.”
Execution by firing squad is not technically authorized in Alabama, where death sentences can be carried out by lethal injection, nitrogen hypoxia or, under some circumstances, electrocution.
Alabama Attorney General Steve Marshall’s office plans to appeal Marks’ decision. Despite concerns from critics about its nitrogen gas protocol, the state has maintained its denial that the method causes cruel or unusual suffering.
Lee would have been the ninth person in the U.S. executed by nitrogen hypoxia, and the eighth in Alabama. Louisiana has carried out one execution in this way. A handful of other states allow executions by nitrogen hypoxia but have never actually used it.
The high court has never ruled specifically on the constitutionality of the nitrogen gas protocol. So, Marks’ decision matters on its own and could have broader impact outside of Alabama.
Based on the political makeup of the Supreme Court and the history of the Court never finding that a method of capital punishment is unconstitutional, I expect that when this case reaches the Supreme Court the ruling that nitrogen gas executions violate the Eighth Amendment will be overturned.
Right or wrong, nitrogen gas executions will likely continue into the future.