Judge blocks Alabama's nitrogen gas execution method, rules it is unconstitutionally cruel

The judge ordered the state to find an alternate method if it is going to move ahead with the execution of Jeffery Lee, who was convicted of murder, and an appeals court upheld the decision.

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A mask similar to those used in nitrogen hypoxia executions was held up during a protest against the death penalty outside the Alabama State Capitol in Montgomery, Ala., last year. Credit... Jake Crandall/Advertiser, via USA TODAY NETWORK, via Imagn Images

June 10, 2026

A federal appeals court on Wednesday evening upheld a decision that blocked Alabama from using nitrogen gas in an execution scheduled for this week, forcing the state to turn to an alternate method if it is going to carry out the death penalty against Jeffery Lee, a convicted murderer.

Alabama officials had appealed a decision handed down on Tuesday by Judge Emily Marks of the Middle District of Alabama that prohibited the state from using a method known as nitrogen hypoxia in Mr. Lee’s execution, which had been scheduled for Thursday. Judges from the U.S. Court of Appeals for the 11th Circuit agreed with Judge Marks’s ruling, calling nitrogen hypoxia a “likely unconstitutional method” for carrying out the death penalty.

The rulings have been the latest turns in the legal battle over Mr. Lee’s fate and his efforts to avoid being put to death by nitrogen hypoxia, a method that has emerged in recent years as states have sought alternatives to lethal injection. In his legal challenge, Mr. Lee has even put forth a firing squad as an alternative that he believed would cause a quicker and less painful death.

Judge Marks had decided almost two weeks ago to let the state use nitrogen gas, finding that it “did not constitute cruel and unusual punishment.” But the case was sent back to her after the appeals court disagreed.

The state had argued that it does not have a protocol in place for death by firing squad, much less legislative approval or “five expert marksmen willing and able to serve as executioners.”

But this time, the judge agreed with Mr. Lee that if a firing squad executed him by aiming four .30-caliber bullets at his heart, he would be unconscious before his brain could register feelings of pain.

“Lee has shown that his proposed firing squad alternative significantly reduces a substantial risk of severe pain as compared to nitrogen hypoxia,” Judge Marks wrote. “The result is that the State of Alabama cannot execute Lee by nitrogen hypoxia — no more, no less.”

The decision does not block the state from executing Mr. Lee. Judge Marks, who was appointed by President Trump, noted in the decision that Alabama has two other approved methods: lethal injection and electrocution.

Mr. Lee’s lawyers have called on Gov. Kay Ivey to intervene. “This execution is simply too flawed to move forward,” they said in a statement on Wednesday.

The case could advance to the U.S. Supreme Court as Alabama officials have vowed to fight to move forward with Mr. Lee’s execution, as well as affirm the constitutionality of using nitrogen gas in executions.

In a statement on Wednesday before the appeals court ruling, the governor’s office said that Ms. Ivey, a Republican, was not planning to change course. “As Alabama continues to defend its execution protocol in the courts, the governor remains prepared to move forward with the planned execution,” the statement said.

Mr. Lee’s looming execution had already drawn scrutiny because he had been condemned through a practice, since abandoned, that allowed judges in Alabama to override the decision of juries in capital cases.

Mr. Lee, 49, had been convicted of killing two people during a pawnshop robbery in 1998. A jury voted to sentence him to life in prison without the possibility of parole, but the trial judge overruled its choice and sentenced him to death.

Alabama had been the last state to allow judges that power, known as judicial override, and they exercised it more than 100 times over four decades, according to a report by the Equal Justice Initiative . In an overwhelming majority of instances, the judges opted for the harsher sentence. Over the years, as many as 20 percent of the inmates on Alabama’s death row had been sent there on sentences involving judicial override.

The state changed the law in 2017, but it did not apply retroactively.

Some, including prominent legal figures in Alabama, have argued that it was unfair to not reconsider death sentences that had been the result of judicial override in the past. Drayton Nabers Jr., the former chief justice of the State Supreme Court, called on Ms. Ivey to commute Mr. Lee’s sentence.

“I believe in the Alabama death penalty,” Justice Nabers wrote in an essay published recently by several news outlets in the state.

But “when a state concludes that a sentencing practice was unjust — unjust enough to abolish by statute — it ought to reckon with the sentences that practice produced,” he added. “To say that the system was wrong going forward but that its past…