A federal appeals court has reversed a lower court ruling that upheld Alabama’s nitrogen hypoxia execution protocol, concluding that evidence presented during what the appeals court described as the first trial in the country examining the constitutionality of a nitrogen hypoxia execution protocol showed the method may subject inmates to an unconstitutional risk of suffering before death.

In a June 8 opinion, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled that death row inmate Jeffery Lee had shown Alabama’s nitrogen hypoxia protocol presents a “substantial risk of serious harm” under the Eighth Amendment’s prohibition against cruel and unusual punishment.

The decision reversed a May 28 ruling by U.S. District Judge Emily Marks, who had concluded the state’s execution method was constitutional after a three-day bench trial in Montgomery. The appellate court sent the case back to Marks for further consideration of Lee’s proposed alternative method of execution, a firing squad.

The panel, consisting of Judges Adalberto Jordan, Robert Luck and Embry Kidd, emphasized that it was relying on factual findings made by Marks during the trial and found those findings were not clearly erroneous.

According to the opinion, Marks found that inmates executed under Alabama’s protocol consciously experience “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort” for approximately one to three minutes.

The appeals court concluded those findings satisfy the legal standard for a substantial risk of serious harm.

“There is, in other words, a substantial risk of serious harm,” the court wrote.

The opinion describes air hunger as activating the brain’s basic survival instincts and producing severe distress, anxiety and panic when a person is unable to obtain enough oxygen. The district court found that many people consider air hunger worse than pain because it is associated with the fear of dying.

In some of the strongest language in the opinion, the appellate court rejected the idea that such suffering could be considered brief or insignificant.

“Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol,” the court wrote.

The judges added that the suffering described in the trial record was “over and above the mental distress that typically accompanies the knowledge of impending death by execution.”

Alabama became the first state in the nation to use nitrogen hypoxia as an execution method in January 2024. The process uses a respirator mask to replace breathable air with pure nitrogen, causing death from oxygen deprivation. According to The Associated Press, nitrogen gas has been used in eight executions nationwide — seven in Alabama and one in Louisiana — and Lee was scheduled to become the next Alabama inmate executed using the method.

Lee, 49, was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a Dallas County pawnshop robbery. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off shotgun and fatally shot both victims. Although a jury voted 7-5 to sentence Lee to life imprisonment without parole, the trial judge overrode that recommendation and imposed a death sentence, a practice Alabama allowed at the time. The state ended judicial override in capital cases in 2017, meaning judges can no longer impose a death sentence when a jury recommends life without parole.

The 11th Circuit did not immediately block Lee’s execution. Instead, it directed the district court to determine whether execution by firing squad is a feasible and readily implemented alternative that would significantly reduce the risk of harm.

On Tuesday, Marks issued a separate order permanently barring Alabama from executing Lee by nitrogen gas and concluding the protocol violates the Eighth Amendment in his case. She noted that the state still has other authorized methods of execution, including lethal injection and the electric chair.

Alabama Attorney General Steve Marshall’s office filed an appeal following Marks’ ruling. State officials have maintained that nitrogen hypoxia is constitutional.

Because Alabama pioneered nitrogen hypoxia as an execution method, the legal battle is expected to receive national attention and could ultimately be reviewed by the U.S. Supreme Court.

Sherri Blevins is a staff writer for Yellowhammer News. You may contact her at [email protected].