The controversy around how states put people to death just took a significant turn. A federal judge in Alabama has ruled that execution by nitrogen gas does not violate the constitutional ban on cruel and unusual punishment, rejecting a death row inmate’s claim that the method causes excessive suffering.
This matters because it’s the first bench trial in the country to actually examine whether nitrogen hypoxia — using pure nitrogen gas to replace breathable air — passes constitutional muster. And the implications stretch far beyond one man’s case.
The method has now been used to execute eight people: seven in Alabama and one in Louisiana. That’s a small number in the grand scheme of American executions, but it’s enough to give us a real picture of how this plays out in practice. And what we’ve learned is unsettling.
U.S. District Judge Emily C. Marks wrote in her ruling that the protocol “likely causes severe air hunger — the most severe form of breathing discomfort — for one to three minutes.” Let that sink in. One to three minutes of what experts describe as the most intense form of suffocation possible, and the court is saying that’s not enough to qualify as cruel and unusual punishment.
Here’s where it gets really interesting. The judge’s reasoning leaned heavily on the extremely high legal bar set by the Supreme Court, which has never actually found a state’s execution method to violate the Eighth Amendment. It’s a familiar pattern in death penalty jurisprudence: the theoretical protection exists, but the practical application keeps falling short of triggering it.
Alabama’s attorney general, Steve Marshall, called the ruling a win for democratic accountability, saying “the question of capital punishment belongs to the people and their representatives, not the courts, to resolve.” That’s one way to look at it. Another way is to recognize that the people and their representatives have consistently chosen methods that involve documented suffering, and the courts have essentially deferred every single time.
The testimony in this case revealed disturbing details. Inmates executed by nitrogen gas have displayed various levels of shaking during the executions, and the state’s own lawyers and the inmates’ attorneys disagreed about whether those movements were involuntary or signs of conscious suffering. Alabama’s most recent nitrogen gas execution took more than 30 minutes to complete.
Lee’s attorneys have indicated they’ll appeal, which means this case is far from over. But the timing is critical. Lee is scheduled to be executed on June 11 at a south Alabama prison. If the appeal doesn’t succeed in blocking that date, he’ll become the eighth person put to death this way.
What’s striking is that Lee wouldn’t even be facing the death penalty today if he’d been sentenced under current Alabama law. He was convicted of capital murder for killing two people during a pawn shop robbery in 1998. A jury voted 7-5 for life imprisonment, but a judge overrode that recommendation and sentenced him to death. Alabama abolished judicial override in 2017, meaning a judge can no longer disregard a jury’s sentencing decision in death penalty cases.
Abraham Bonowitz, executive director of Death Penalty Action, put it plainly: “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.”
He’s right that the waiting is its own form of torture. But the method question matters too, because states keep insisting they’ve found something “humane” while the actual evidence tells a different story. Five states have now authorized nitrogen gas as an execution method, though only two have used it. That number could easily grow if the ruling stands.
What happens next will test whether the appeals process can actually provide meaningful oversight, or whether we’ll continue down a path where states experiment with execution methods while the constitutional protections remain more theoretical than real.
