The Supreme Court blocked Alabama from executing death row inmate Jeffery Lee using nitrogen gas in a 6-3 ruling issued Thursday night, upholding lower court decisions that found the execution method unconstitutionally cruel. The justices declined to explain their reasoning in the brief, unsigned order, which came shortly after 9 p.m. EDT and prevented the execution scheduled for that evening from proceeding.
Three conservative justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—indicated they would have granted Alabama’s last-minute request to lift the injunction and allow the execution to move forward. The majority’s silence on its reasoning is typical of emergency orders on the Supreme Court’s docket, but it leaves the broader legal question of nitrogen hypoxia’s constitutionality unresolved at the nation’s highest court.
The nitrogen hypoxia method involves placing a mask over a prisoner’s face and pumping pure nitrogen gas to replace breathable air, causing death from oxygen deprivation. The 11th U.S. Circuit Court of Appeals ruled on June 8 that the method poses “a substantial risk of serious harm” because it causes “one to three minutes of severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort.” The court found this suffering “over and above the mental distress that typically accompanies the knowledge of impending death by execution.” District Judge Emily Marks initially upheld the method in May but reversed course after the appeals court’s decision, permanently barring Alabama from using nitrogen hypoxia to execute Lee.
Alabama has used nitrogen gas in eight executions since 2024—seven in the state and one in Louisiana—with Lee’s scheduled execution as the ninth. During prior Alabama nitrogen executions, inmates shook, pulled at restraints, and exhibited labored breathing. During one execution, 30 minutes elapsed between when the inmate first showed signs of being affected by the gas and when officials closed the curtain to signal the execution was complete, according to reporting by Politico.
Lee, 49, was convicted in 1998 of murdering Jimmy Ellis, a pawnshop owner, and Elaine Thompson, an employee, during a robbery in Dallas County, Alabama. His trial jury voted 7-5 to sentence him to life without parole, but the judge overrode that verdict and imposed a death sentence. Alabama abolished the practice of judicial override in 2017, making Lee’s case a focal point for those arguing the jury’s original verdict should be honored. Author John Grisham called on Governor Kay Ivey to commute Lee’s sentence, noting that Alabama itself had declared judicial override unconstitutional and indefensible.
Alabama’s solicitor general had argued that any breathing discomfort from nitrogen hypoxia does not rise to “the level of a severe pain” required by the Eighth Amendment’s ban on cruel and unusual punishment. The state also contended that allowing the lower courts’ ruling to stand would be “unprecedented in American history,” not only imposing the first permanent ban on a legislatively enacted execution method but expanding the concept of cruelty beyond constitutional bounds. However, Lee’s legal team countered that the district court’s decision was based on a full three-day bench trial with 11 witnesses and thousands of pages of exhibits, and that execution by nitrogen asphyxiation causes suffering “when the execution works exactly as designed,” unlike other methods where pain results from procedures going wrong.
Following the Supreme Court’s decision, Alabama is pursuing lethal injection as an alternative method to carry out Lee’s execution. The state has not indicated when it might seek a new execution date.
Sources
- Politico — Supreme Court voting 6-3 to reject Alabama’s request, three conservative justices’ dissent, nitrogen method description, prior Alabama nitrogen executions, Lee’s conviction details and jury override, Judge Marks’ initial ruling, and Governor Ivey’s statement
- SCOTUSblog — Lower courts’ rulings on nitrogen hypoxia as unconstitutional, the 11th Circuit’s reasoning on severe air hunger and emotional distress, Lee’s legal arguments, Alabama’s arguments on alternative execution methods, and the timing and nature of the Supreme Court order
- CBS News — Alabama seeking lethal injection as alternative execution method for Lee
- NBC News — Lee’s challenge to nitrogen protocol and his proposal of firing squad as alternative
