Alabama says nitrogen hypoxia is the new humane way to kill someone on death row. But federal courts recently took a closer look at what that actually means for the person strapped to the gurney. Evidence suggests it may look a lot more like torture than mercy, which would violate the Eighth Amendment’s right to be free from cruel and unusual punishment. FindLaw takes you through the ongoing legal battle over modern execution methods.
Alabama’s Path to a New Killing Method
For years, Alabama stood out for practices like judicial override (where judges could impose death even when juries recommended life) as well as a string of botched and heavily scrutinized lethal injections. And only a couple of years ago, it became the first state in the nation to execute someone using nitrogen gas. This is not unexpected, considering Alabama has the highest per capita death sentencing rate in the country. That first nitrogen execution involved inmate Kenneth Smith, whose case drew national scrutiny to the new method.
By adopting nitrogen hypoxia as its latest execution method, Alabama has again put itself at the forefront of capital punishment. The move has sparked fresh questions about whether this supposedly more humane alternative instead perpetuates the state’s longstanding pattern of controversial and risky executions.
Despite national skepticism, the state doubled down. To date, seven people have been put to death with nitrogen gas in Alabama alone. Last year, Louisiana carried out its own first execution using nitrogen hypoxia, becoming the first state outside Alabama to employ the method and signaling that what began as Alabama’s experiment is now spreading beyond its borders.
Jeffery Lee is one of the next people Alabama plans to execute using nitrogen gas, and his lawsuit is the first to reach a full trial and a clear ruling from a federal appeals court on whether the state’s nitrogen method is constitutional.
The Case That Put Nitrogen on Trial
In 1998, Lee was convicted of killing two people and attempting to kill a third during a pawn shop robbery in Alabama. The jury voted 7–5 for a life‑without‑parole sentence, but under Alabama law at the time, the judge was allowed to ignore that recommendation and instead sentenced him to death.
After exhausting his direct and collateral challenges to that sentence, Lee turned to civil rights litigation. In 2016, he filed a §1983 suit attacking Alabama’s lethal‑injection protocol under the Eighth Amendment, but that case was dismissed in 2018 after he elected execution by nitrogen hypoxia once the legislature authorized that method.
By 2025, Alabama had already begun using nitrogen hypoxia in executions, and Lee saw his own execution looming as a realistic next step. So, he filed a new §1983 lawsuit focusing on the new method. He alleged that “[e]xecution by nitrogen hypoxia” induces “conscious suffocation” that “is cruel and unusual because it superadds terror and pain during the execution.” He proposed execution by firing squad as a safer alternative that would significantly reduce the risk of severe pain.
The state asked the Alabama Supreme Court to set an execution date, and in April 2026, the governor scheduled a 30‑hour nitrogen‑gas execution window for June 11–12, 2026. In response, the federal district court held a three‑day bench trial at the end of April, taking testimony from medical experts and reviewing extensive evidence on how Alabama’s protocol actually works in practice.
The judge ultimately found that inmates executed under the protocol “consciously” experienced one to three minutes of “severe air hunger” and related physical and emotional distress. However, she concluded that this suffering was not “needless” and therefore did not violate the Eighth Amendment. On that basis, she rejected Lee’s claim. He appealed to the Eleventh Circuit.
Eleventh Circuit Draws a Line
On appeal, the Eleventh Circuit agreed on the facts, but not on what those facts mean under the Eighth Amendment.
The court accepted the findings from the trial: that Alabama’s nitrogen protocol causes a person to experience a panicked, suffocating feeling of not being able to breathe, along with intense anxiety, physiological stress, and physical discomfort. But where the district court saw that suffering as part of the “necessary” pain of an execution, the Eleventh Circuit said it crosses a constitutional line. In the panel’s view, the few minutes of air hunger “presents a substantial risk of serious harm—severe pain over and above death itself.” This satisfies the first requirement for an Eighth Amendment method‑of‑execution claim.
That didn’t end the case, though. Under current Supreme Court precedent, a prisoner also has to meet a second requirement: identifying a different execution method that the state can practically carry out and that would significantly reduce the risk of severe pain. Lee has proposed the firing squad, pointing to Utah’s protocol, and the parties hotly dispute whether that option is actually feasible and less painful in practice.
Instead of deciding those questions itself, the Eleventh Circuit sent the case back to the trial court. In the coming weeks, that court will have to decide whether death by firing squad is a real, workable alternative and whether it would meaningfully reduce the suffering Alabama’s nitrogen protocol causes. Her answers will determine not only if Jeffery Lee can be executed under the current plan, but also how far Alabama (and any state following its lead) can go in using nitrogen gas as a way to put people to death.
