Eleventh Circuit Refuses to Clear the Way: Injunction Against Nitrogen Hypoxia Stands on the Eve of Jeffery Lee's Execution Date

One day before the State of Alabama plans to execute Jeffery Lee, the Eleventh Circuit Court of Appeals refused to lift the federal court order standing in its way.

In an order issued today, a panel of the Eleventh Circuit denied the Alabama Department of Corrections' emergency motion to stay the permanent injunction entered Monday by the U.S. District Court for the Middle District of Alabama. That injunction prohibits the State from executing Mr. Lee by nitrogen hypoxia — a method the district court found unconstitutional after a three-day trial, eleven witnesses, and hundreds of exhibits.

Unless the U.S. Supreme Court intervenes, Alabama cannot execute Jeffery Lee by nitrogen gas when his execution window opens at midnight tonight.

How we got here

Jeffery Lee was sentenced to death in 2000 — not by a jury, but by a judge. His jury voted for life. The trial judge overrode that verdict, a practice Alabama abolished in 2017 but has refused to apply retroactively to the roughly 32 people, like Mr. Lee, who remain on death row because of it.

In August 2025, Mr. Lee and seven other men on Alabama's death row challenged the State's nitrogen hypoxia protocol under the Eighth Amendment. While that litigation was actively underway, the State moved to set Mr. Lee's execution date. The district court held a full bench trial in late April and found that a person executed under Alabama's protocol consciously experiences severe "air hunger" — the desperate sensation of suffocation — along with panic, anxiety, and physical distress for one to three minutes.

On Monday, the Eleventh Circuit held that those findings establish a "substantial risk of serious harm — severe pain over and above death itself," satisfying the first prong of the Supreme Court's Glossip test. It sent the case back to the district court to decide the second prong: whether Mr. Lee had identified a feasible, readily implemented alternative that would significantly reduce that suffering.

On Tuesday, the district court answered yes. Crediting unrebutted expert testimony that execution by firing squad renders a person unconscious in three to five seconds — before the brain can even process pain — the court found the firing squad feasible, readily implementable, and dramatically less cruel than minutes of conscious suffocation. It entered a permanent injunction barring the State from using nitrogen to execute Mr. Lee.

What the court said today

The State raced to the Eleventh Circuit asking it to stay the injunction so the execution could proceed by nitrogen hypoxia tomorrow. Today the court said no.

The panel majority found the State unlikely to succeed on appeal. It found the district court's factual findings were "amply supported by the evidence," and choosing to believe Mr. Lee's expert over the State's expert, whose key opinion the court found had no supporting authority, was a proper credibility determination.

The court also rejected the State's complaints about timing. Mr. Lee filed his challenge within the statute of limitations. It was the State that chose to set his execution date in the middle of active litigation. "Any delay in obtaining relief after the State moved to set the execution date," the court wrote, "is not attributable to Mr. Lee."

And the court was clear-eyed about what was actually at stake: "June 11 is not a magical date." The injunction does not prevent Alabama from carrying out Mr. Lee's sentence — it prevents Alabama from carrying it out by a method a federal court has found unconstitutional.

The panel observed that granting the State's request would have mooted the appeal entirely — executing Mr. Lee by nitrogen gas before any court could finally decide whether nitrogen gas is constitutional. "The public, the State, and Mr. Lee all have an interest in ensuring that executions are carried out consistently with the Constitution."

One judge dissented, arguing the State was likely to win on appeal and that Mr. Lee waived his objections by electing nitrogen hypoxia in 2018 — an election he made five years before Alabama even wrote its protocol, and eight years before physicians established what it does to the human body.

What this means

For the first time, a federal court has permanently enjoined an execution by nitrogen hypoxia after full merits findings that the method inflicts unconstitutional suffering — and a federal appeals court has refused to disturb that ruling. Alabama has executed people by nitrogen gas since January 2024 over mounting evidence of conscious suffering. Witnesses have described thrashing, gasping, and minutes of visible agony. Today, those accounts are no longer just witness statements. They are judicial findings of fact, affirmed as plausible by the Eleventh Circuit.

What happens next

The State is all but certain to file an emergency application with the U.S. Supreme Court asking it to vacate the injunction before the execution window closes at 6:00 a.m. Friday. Mr. Lee's legal team will oppose. The Supreme Court has vacated lower-court stays in Alabama execution cases before, often in late-night orders — but this case arrives in a different posture: a permanent injunction entered after a full trial, with factual findings two courts have now reviewed.

If the window closes. If the Supreme Court does not act and the execution window expires Friday morning, the State must return to the Alabama Supreme Court for a new execution warrant before it can set another date — by any method.

The merits appeal. Today's order resolved only the emergency stay. The State's appeal of the permanent injunction itself remains pending, and the Eleventh Circuit will ultimately decide, squarely and on a full record, whether Alabama's nitrogen hypoxia protocol violates the Eighth Amendment. That decision will reach far beyond this case: seven other men challenged the same protocol the same day Mr. Lee did, and Alabama has carried out every execution since early 2024 by nitrogen gas.

The legislature and the governor. The district court's injunction leaves Alabama free to pursue other methods. Whether the State doubles down on defending nitrogen gas, pivots to other methods, or finally reckons with the questions this litigation has forced into the open is now a choice — and the people of Alabama deserve to watch their officials make it in daylight.

Jeffery Lee's jury voted to spare his life twenty-six years ago. Tonight, a federal injunction stands between him and a method of execution two courts have found inflicts suffering the Constitution forbids. Whatever happens in the next thirty hours, the record now exists — and it is not going away.