A First in American Law: The Supreme Court Lets Stand a Ruling That Nitrogen Hypoxia Is Unconstitutional

Jeffery Lee is alive this morning.

At 6:00 a.m. Central today, the execution window set by Governor Ivey expired. Before any future execution date can be set, the State will need new authorization to proceed — and under the permanent injunction, it cannot proceed by nitrogen hypoxia by any route unless the judgment is overturned on appeal.

The window closed because, late Thursday, the United States Supreme Court declined to disturb the permanent injunction barring Alabama from executing Mr. Lee by nitrogen hypoxia.

Pause on what that sentence means. For the first time in American history, a federal court’s judgment that a legislatively authorized method of execution violates the Eighth Amendment has been allowed to stand — through trial, through final judgment, through the court of appeals, and through the Supreme Court of the United States.

How the final two days unfolded

On Wednesday evening, four hours before the execution window opened, a divided panel of the Eleventh Circuit denied the State’s emergency motion to stay the injunction. The majority found the State unlikely to succeed on appeal: the district court’s factual findings — that nitrogen hypoxia inflicts one to three minutes of severe air hunger, panic, and conscious suffering, while a firing squad renders a person unconscious in three to five seconds, before the brain can process pain — were “amply supported by the evidence” presented at trial. The court rejected the State’s complaints about timing, observing that Mr. Lee sued within the statute of limitations and that it was the State that chose to set his execution date in the middle of active litigation. “June 11,” the court wrote, “is not a magical date.”

Thursday morning, the Alabama Attorney General filed an emergency application with Justice Clarence Thomas, the Circuit Justice for the Eleventh Circuit, asking the Supreme Court to stay or vacate the injunction in time to carry out the execution at 6:00 p.m. that evening. Mr. Lee’s legal team filed its opposition by 3:00 p.m. Eastern. And on Thursday hours past the time designated for the execution, the Supreme Court declined to grant the State’s application. The injunction stood. The execution did not go forward.

Why this case ended differently — and why that is the whole point

The State’s application leaned heavily on a familiar set of cases: Smith, Grayson, Frazier, Boyd, Hoffman. Eight nitrogen executions, the State argued, and the courts allowed every one. Why should this case be any different?

Because every one of those cases arose in the same posture: a prisoner, facing an imminent execution date, asking a court for preliminary emergency relief — a stay or a preliminary injunction — based on a prediction about whether he was likely to win a trial that had not yet happened. In those cases, courts reviewed truncated records, assembled in days or weeks, and made forecasts. When the courts “upheld” nitrogen hypoxia in Smith, Grayson, Boyd, and Hoffman, what they actually held was narrower: that on the rushed and limited records before them, those men had not yet shown they were likely to prove their claims.

No court had ever held a full trial on Alabama’s nitrogen hypoxia protocol.

Until this one.

Jeffery Lee’s case went to trial. Over three days in late April, the United States District Court for the Middle District of Alabama heard eleven witnesses, admitted hundreds of exhibits, weighed competing expert testimony, and made findings of fact — the considered judgment our legal system treats as the gold standard for resolving disputed questions. The court found, as fact, that a person executed under Alabama’s protocol consciously experiences severe air hunger — the desperate, panicked sensation of suffocation — for one to three minutes. The Eleventh Circuit held those findings establish exactly what the Supreme Court’s precedents forbid: a substantial risk of severe suffering over and above death itself. And on remand, the district court found, again as fact and on unrebutted expert testimony, that a firing squad would end a life in seconds, before pain can register — then entered final judgment and a permanent injunction.

So when Alabama arrived at the Supreme Court on Thursday, the posture was the mirror image of every case it cited. In those cases, prisoners asked courts to intervene at the last minute based on predictions. This time, it was the State asking the Supreme Court to intervene at the last minute — to sweep aside a final judgment, entered after a full trial, with factual findings two courts had reviewed and sustained, all in a matter of hours, without briefing or argument. The Supreme Court’s repeated instruction in these cases — including in Barr v. Lee, the State’s own lead authority — has been that courts should be wary of last-minute intervention that upends the status quo on thin records. On Thursday, that principle was applied evenhandedly. The Court declined to intervene.

The result respects something basic about how our legal system works. Appellate courts do not retry cases. Factual findings made after a bench trial stand unless they are clearly erroneous — not merely debatable, but implausible on the whole record. The district judge who watched eleven witnesses testify was entitled to credit Mr. Lee’s experts over the State’s, and no court in the past four days found any basis to second-guess that judgment.

What this means

For two years, Alabama has answered every account of thrashing, gasping, and visible agony in its nitrogen executions the same way: no court has ever found the method unconstitutional. That answer is gone — permanently. A court held a trial, heard the evidence, made findings, and entered judgment. The court of appeals let that judgment stand. So did the Supreme Court.

The factual record built in Mr. Lee’s case is now the first full trial record on nitrogen hypoxia anywhere in the country, and it will shape everything that follows: the State’s pending merits appeal, the consolidated challenge brought by eight other men on Alabama’s death row set for trial in June 2027, Louisiana’s parallel protocol, and the national debate over a method that was sold to legislatures and courts alike as quick, humane, and painless.

What happens next

For Mr. Lee. The execution window has expired. Before the State can set a new date — by any method — it must have new authorization to proceed. The permanent injunction means any future execution cannot proceed by nitrogen hypoxia unless the judgment is overturned on appeal.

In the Eleventh Circuit. The State’s merits appeal of the permanent injunction remains pending. The court of appeals will now decide, on a full record and a regular schedule, whether Alabama’s nitrogen hypoxia protocol violates the Eighth Amendment — a decision with consequences for every person on Alabama’s death row and for every state considering the method.

In Montgomery. The injunction leaves Alabama free to pursue its other authorized methods. Whether the State continues defending nitrogen gas through years of appeals, pivots to other methods, or finally reckons with what the trial record revealed is now a choice its officials must make in public, with judicial findings of fact on the table.

Twenty-six years ago, Jeffery Lee’s jury voted for life, and a judge overrode them. This week, for the first time, the full machinery of federal judicial review — trial, appeal, and the highest court in the nation — stood between him and a method of execution the evidence showed would suffocate him while he was awake to feel it. The law did what it is supposed to do: it looked at the facts, and the facts held.