A Federal Court Has Declared Alabama's Nitrogen Hypoxia Protocol Unconstitutional

Tonight, a federal judge declared the state's nitrogen hypoxia execution protocol unconstitutional.

In a ruling issued this evening, United States District Judge Emily Marks found that Alabama's nitrogen hypoxia protocol violates the Eighth Amendment's prohibition on cruel and unusual punishment, permanently enjoined its use in the execution of Jeffery Lee, and entered judgment in Mr. Lee's favor. The ruling came on remand from yesterday's Eleventh Circuit decision, which had already found that the protocol causes one to three minutes of severe, conscious suffering — air hunger described as worse than pain, akin to drowning — constituting a substantial risk of serious harm.

Judge Marks's ruling resolved the remaining legal question: whether execution by firing squad is a feasible, less painful alternative. The answer, she found, was yes.

The court credited the testimony of Mr. Lee's expert, Dr. James Williams, who testified that four .30-caliber bullets fired at the heart render an inmate deeply unconscious within three to five seconds — before the brain can process pain. The State's own expert had his opinions on firing squad largely excluded after he conceded on cross-examination that he had no scientific support for his central claims. And critically, ADOC's own former Commissioner and Deputy Commissioner both testified that the agency could staff, train, and implement a firing squad execution team if the legislature authorized it. The State's arguments about volunteer shortages and supply chain concerns fared no better — the court found them unsupported and contradicted by the State's own witnesses.

The difference between one to three minutes of severe air hunger and three to five seconds of unconsciousness without perceivable pain, Judge Marks found, is "clear and considerable." Alabama cannot execute Jeffery Lee by nitrogen hypoxia.

What comes next: The State is expected to appeal to the Eleventh Circuit tomorrow. Mr. Lee's execution window opens Thursday at midnight. Whether that window closes before the courts act is now the central question.