Nitrogen Gas Execution Method Could Cause a Cruel Amount of Pain, US Court Warns in Landmark Ruling
The state of Alabama's relatively recently introduced method of execution using nitrogen gas has the potential to inflict an excessively cruel amount of pain and suffering on a death row inmate, who has expressed a preference for being executed by a firing squad, according to a ruling made by a federal appeals court.
The method of execution utilizing nitrogen gas is capable of causing inmates to experience severe air hunger, as well as corresponding emotional distress, anxiety, physiological stress, and physical discomfort, which can persist for a duration of up to three minutes, as stated by the 11th U.S. Circuit Court of Appeals in its ruling on Monday, June 8, which referenced a finding made by a lower court.
This type of suffering, as determined by the appellate court, presents a substantial risk of serious harm that exceeds the harm caused by death itself, thereby posing a significant threat to the individual undergoing this form of execution.
Counting to 60 or 180 seconds proves to be a lengthy and arduous task, and from a constitutional standpoint, such a timeframe is deemed unacceptable due to the significant suffering that is likely to occur as a result of Alabama's nitrogen hypoxia protocol.
The decision is a result of an appeal that was filed by death row inmate Jeffrey Lee, who is currently scheduled to be executed by means of nitrogen gas in the state of Alabama on Thursday, June 11, as punishment for his role in a double murder that took place during a robbery at a pawn shop in 1998.
Although the ruling can be considered a victory for those who oppose the death penalty and are fighting against the utilization of nitrogen gas, the court ultimately declined to grant Jeffrey Lee a stay of execution or attempt to completely eliminate the method of execution by nitrogen gas.
Instead, the court chose to remand the case to a district judge, with the intention of having the judge assess the practicality and feasibility of executing Jeffrey Lee by firing squad, as had been specifically requested by Lee himself.
Although death row inmates are not guaranteed a completely pain-free death, the U.S. Constitution mandates that their executions must be conducted in a manner that is free from "cruel and unusual punishment," which implies that while some level of pain may be unavoidable, it should not be excessively inflicted without a valid reason, as stipulated by the law.
The argument presented by defense attorneys, advocates who oppose the death penalty, and certain individuals who have witnessed executions carried out using nitrogen gas is that this method constitutes a form of torture, and as such, it represents a clear and direct violation of the Constitution.
The state of Alabama holds the distinction of being the first in the nation to have carried out an execution using nitrogen gas, specifically in the case of Kenneth Eugene Smith, which took place in 2024. Following this initial execution, the state of Alabama has gone on to execute an additional six inmates using this method, while the state of Louisiana has utilized it on one occasion.
The process of carrying out an execution using this method involves executioners securing the inmate to a gurney using both chest and shoulder harnesses, and then attaching a mask to the inmate's face, thereby preparing them for the administration of the nitrogen gas.
The process of execution involves ultra-high purity nitrogen gas flowing into the mask, which gradually displaces the breathable air present, ultimately resulting in the complete removal of air, leading to the inmate losing consciousness and eventually dying.
According to witness accounts from the initial four executions that took place in Alabama, the method of execution was described as causing significant suffering, including intense conscious terror that lasted for several minutes, accompanied by shaking, gasping, and other clear evidence of distress, as noted by Louisiana Chief District Judge Shelly Dick in her assessment of the method in her state last year. The witnesses observed that the inmates were writhing under their restraints, experiencing vigorous convulsing and shaking that continued for approximately four minutes, in addition to heaving, spitting, and engaging in a conscious struggle for life, as documented by Judge Dick in her written account.
In a recent ruling, an Alabama judge concurred that the evidence presented by Lee indicated a likelihood of experiencing pain during the course of his execution scheduled for this week, although the judge determined that the degree of pain would not be deemed unconstitutional.
The Execution Intervention Project, a prominent anti-death penalty organization that has been actively opposing the use of nitrogen gas executions, described Monday's ruling as "the most significant legal development" to date in the ongoing fight against this particular method of execution.
The group issued a urgent appeal to the state of Alabama to immediately halt the execution of Lee and also called upon Governor Kay Ivey to acknowledge that her state is currently utilizing a method of execution that a federal court has now determined is likely to cause conscious suffocation for an extended period of time, specifically for several minutes.
The Execution Intervention Project expressed their most pressing concern, stating, "Most urgently, we pray that this ruling will be sufficient to save the life of Jeffrey Lee."
There was no immediate response from either Governor Ivey's office or Lee's legal team to the request for comment submitted by USA TODAY.
If carried out, the execution of Lee would mark the first instance of a capital punishment being administered in the state of Alabama this year.
Another inmate, Charles Lee "Sonny" Burton, was originally scheduled to be put to death by nitrogen gas in March, but Ivey intervened and commuted his death sentence to a life sentence just two days prior to the scheduled execution. The decision made by Ivey to commute Burton's sentence was not related to the method of execution that was to be used. According to Ivey, it would have been "unjust" to carry out the execution of Burton, given that he was not the individual who pulled the trigger in a violent robbery that took place at an AutoZone store in 1991, which ultimately turned out badly.
This particular instance marked the second time that the Republican governor has chosen to commute the sentence of an inmate during her nine years in office, a period of time in which she has overseen a total of 25 executions.
Amanda Lee Myers is a senior crime reporter who provides in-depth coverage of the death penalty, cold cases, and breaking news for USA TODAY, and her work can be followed on various platforms.
The method of execution utilizing nitrogen gas is capable of causing inmates to experience severe air hunger, as well as corresponding emotional distress, anxiety, physiological stress, and physical discomfort, which can persist for a duration of up to three minutes, as stated by the 11th U.S. Circuit Court of Appeals in its ruling on Monday, June 8, which referenced a finding made by a lower court.
This type of suffering, as determined by the appellate court, presents a substantial risk of serious harm that exceeds the harm caused by death itself, thereby posing a significant threat to the individual undergoing this form of execution.
Counting to 60 or 180 seconds proves to be a lengthy and arduous task, and from a constitutional standpoint, such a timeframe is deemed unacceptable due to the significant suffering that is likely to occur as a result of Alabama's nitrogen hypoxia protocol.
The decision is a result of an appeal that was filed by death row inmate Jeffrey Lee, who is currently scheduled to be executed by means of nitrogen gas in the state of Alabama on Thursday, June 11, as punishment for his role in a double murder that took place during a robbery at a pawn shop in 1998.
Although the ruling can be considered a victory for those who oppose the death penalty and are fighting against the utilization of nitrogen gas, the court ultimately declined to grant Jeffrey Lee a stay of execution or attempt to completely eliminate the method of execution by nitrogen gas.
Instead, the court chose to remand the case to a district judge, with the intention of having the judge assess the practicality and feasibility of executing Jeffrey Lee by firing squad, as had been specifically requested by Lee himself.
Although death row inmates are not guaranteed a completely pain-free death, the U.S. Constitution mandates that their executions must be conducted in a manner that is free from "cruel and unusual punishment," which implies that while some level of pain may be unavoidable, it should not be excessively inflicted without a valid reason, as stipulated by the law.
The argument presented by defense attorneys, advocates who oppose the death penalty, and certain individuals who have witnessed executions carried out using nitrogen gas is that this method constitutes a form of torture, and as such, it represents a clear and direct violation of the Constitution.
The state of Alabama holds the distinction of being the first in the nation to have carried out an execution using nitrogen gas, specifically in the case of Kenneth Eugene Smith, which took place in 2024. Following this initial execution, the state of Alabama has gone on to execute an additional six inmates using this method, while the state of Louisiana has utilized it on one occasion.
The process of carrying out an execution using this method involves executioners securing the inmate to a gurney using both chest and shoulder harnesses, and then attaching a mask to the inmate's face, thereby preparing them for the administration of the nitrogen gas.
The process of execution involves ultra-high purity nitrogen gas flowing into the mask, which gradually displaces the breathable air present, ultimately resulting in the complete removal of air, leading to the inmate losing consciousness and eventually dying.
According to witness accounts from the initial four executions that took place in Alabama, the method of execution was described as causing significant suffering, including intense conscious terror that lasted for several minutes, accompanied by shaking, gasping, and other clear evidence of distress, as noted by Louisiana Chief District Judge Shelly Dick in her assessment of the method in her state last year. The witnesses observed that the inmates were writhing under their restraints, experiencing vigorous convulsing and shaking that continued for approximately four minutes, in addition to heaving, spitting, and engaging in a conscious struggle for life, as documented by Judge Dick in her written account.
In a recent ruling, an Alabama judge concurred that the evidence presented by Lee indicated a likelihood of experiencing pain during the course of his execution scheduled for this week, although the judge determined that the degree of pain would not be deemed unconstitutional.
The Execution Intervention Project, a prominent anti-death penalty organization that has been actively opposing the use of nitrogen gas executions, described Monday's ruling as "the most significant legal development" to date in the ongoing fight against this particular method of execution.
The group issued a urgent appeal to the state of Alabama to immediately halt the execution of Lee and also called upon Governor Kay Ivey to acknowledge that her state is currently utilizing a method of execution that a federal court has now determined is likely to cause conscious suffocation for an extended period of time, specifically for several minutes.
The Execution Intervention Project expressed their most pressing concern, stating, "Most urgently, we pray that this ruling will be sufficient to save the life of Jeffrey Lee."
There was no immediate response from either Governor Ivey's office or Lee's legal team to the request for comment submitted by USA TODAY.
If carried out, the execution of Lee would mark the first instance of a capital punishment being administered in the state of Alabama this year.
Another inmate, Charles Lee "Sonny" Burton, was originally scheduled to be put to death by nitrogen gas in March, but Ivey intervened and commuted his death sentence to a life sentence just two days prior to the scheduled execution. The decision made by Ivey to commute Burton's sentence was not related to the method of execution that was to be used. According to Ivey, it would have been "unjust" to carry out the execution of Burton, given that he was not the individual who pulled the trigger in a violent robbery that took place at an AutoZone store in 1991, which ultimately turned out badly.
This particular instance marked the second time that the Republican governor has chosen to commute the sentence of an inmate during her nine years in office, a period of time in which she has overseen a total of 25 executions.
Amanda Lee Myers is a senior crime reporter who provides in-depth coverage of the death penalty, cold cases, and breaking news for USA TODAY, and her work can be followed on various platforms.
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