Alabama Presses Ahead: Judge Marks Clears the Way in Lee v. Hamm, 11th Circuit Next

Jeffery Lee and his son.

Last week, U.S. District Court Judge Emily Marks issued a ruling that will allow Alabama to proceed with the scheduled nitrogen hypoxia execution of Jeffrey Lee on June 11 — despite evidence that the method causes suffering.

Judge Marks found that Lee failed to show by a preponderance of the evidence that Alabama's nitrogen hypoxia protocol causes severe pain or suffering "well beyond what's needed to effectuate a death sentence," and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishment. Notably, Marks did not dispute that death by nitrogen hypoxia involves some suffering — she simply concluded that the suffering Lee established was not sufficient to clear the constitutional bar. In other words: yes, it causes pain. No, that's not enough. Rocket City Now Alabama Political Reporter

This case carries layers beyond the Eighth Amendment challenge. Lee's death sentence was itself the product of judicial override — a judge overriding the jury's recommendation of life imprisonment, a practice Alabama abolished in 2017 but did not make retroactive. As his attorney put it, Alabama fixed the law. Jeffrey Lee is still paying the price for when it was broken. His legal team has also raised claims related to a traumatic brain injury that they argue profoundly affected his behavior and culpability. Davis Vanguard

The litigation has not been without controversy. Earlier in the proceedings, Judge Marks found that ADOC and the Alabama Attorney General's Office had falsely stated that pulse oximeter data from prior nitrogen executions could not be maintained — when in fact the defendants knew as of February 2026 that the devices retained residual data. That data — potentially critical to understanding what condemned people actually experience during nitrogen hypoxia — was the subject of sanctions proceedings. Alabama Reflector

Lee's attorneys have appealed, and the case is now set for oral argument before the Eleventh Circuit this Friday, June 6, at 3:00 p.m. ET. The court will be livestreamed. With an execution date of June 11, the timeline is razor thin.

Watch this space.