Alabama | Judicial Decision About Nitrogen Hypoxia Renders the Constitutional Prohibition of Cruel Punishment Meaningless

On June 11, the state of Alabama plans to execute Jeffrey Lee with nitrogen hypoxia. He will be the ninth person put to death by this method since its first use in 2024.

Lee contends that nitrogen hypoxia will cause him great suffering. On May 28, Federal District Judge Emily Marks agreed with him but said his execution could proceed nonetheless.

Hers is a remarkable and shockingly candid decision. It made history, coming after the first trial in the country on the constitutionality of nitrogen hypoxia. To her credit, Judge Marks offered an unusually detailed picture of the pain imposed by capital punishment.

That made it even more shocking when she gave Alabama the green light to put Lee to death using an execution method that she acknowledged "causes severe air hunger—the most severe form of breathing discomfort—for one to three minutes” and “profound physiological discomfort and distress, as well as anxiety, fear, and dread.” To reach this result, the judge, appointed to the bench by President Donald Trump in 2018, interpreted the constitutional prohibition on cruel and unusual punishment in a way that renders it meaningless in the modern world.

Her opinion amounts to judicial nullification of a part of the Constitution, the kind of judicial activism which in the past would have drawn condemnation from conservatives. But no more. They are quite content to eviscerate the Eighth Amendment and get out of the way so states can carry out executions with little, if any, judicial oversight.

The Atlantic’s Elizabeth Breunig got it right when she said that the amendment’s protections “lie nearest to the skin, flesh, and blood of each American citizen…” and when she described its “disintegration” at the hands of judges like Marks who refuse to enforce it. That sad fact, she explained, “may go unnoticed by those who, through good sense or good fortune, never encounter governmental punishment; its loss is felt acutely by those who do.”

Lee will be the latest person to suffer because of that loss. While it may be too late for Lee, saving the Eighth Amendment will require reviving a jurisprudential approach that ties its meaning to the “evolving standards of decency that mark the progress of a maturing society.”

Lee, who is Black, was convicted and sentenced to death for the murders of Jimmy Ellis and Elaine Thompson and the attempted murder of Helen King during the robbery of a pawn shop in 1998. The victims were white.

As the Equal Justice Initiative (EJI) notes, Lee received a death sentence “even though his capital jury voted 7-5 against the death penalty and chose a sentence of life imprisonment without parole. The trial judge,” it continues, “overrode the jury’s verdict and sentenced Mr. Lee to death in 2000, relying on a unique Alabama practice that allowed judges to overrule jury verdicts in death penalty cases.”

The EJI adds that “If his trial happened today—or at any time after override was abolished in 2017—he would have been sentenced to life imprisonment without parole as his jury decided. Instead, he is facing execution because his capital trial was held before 2017, when Alabama law still allowed a single official to override the judgment of the 12 people charged with deciding his fate.”

Lee was originally scheduled to be put to death by lethal injection, but opted for nitrogen hypoxia when Alabama first adopted it. Now, having seen what it did when it was used, Lee prefers death by firing squad.

As I have previously written, “Using oxygen deprivation as a way for states to put people to death was proposed thirty years ago in a National Review article entitled ‘Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation.’ Other sources agreed that nitrogen hypoxia would kill with kindness, including a BBC documentary called ‘How to Kill a Human Being‘ and Slate’s Tom McNichol, who wrote a piece called ‘Death by Nitrogen in 2014.”

Experience has shown that death by nitrogen hypoxia is anything but kind. Witnesses to those executions call them “torturous… agonizing and painful.”

Supreme Court Justice Sonia Sotomayor offered the following graphic description in a 2025 dissent from the Supreme Court’s refusal to hear a case alleging that nitrogen hypoxia is unconstitutional: “Take out your phone, go to the clock app, and find the stopwatch. Click start. Now watch the seconds as they climb…. The clock ticks on. Then, finally, you make it to four minutes. Hit stop.”

“Now,” Sotomayor continued, “imagine for that entire time, you are suffocating. You want to breathe; you have to breathe. But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you. But your body keeps telling you to breathe.”

Someone being executed by nitrogen hypoxia “will gasp for air… thrash violently against the restraints holding him in place as he experiences this intense psychological torment until he finally loses consciousness.”

So, it is little wonder that Lee wants no part of it.

And in her discussion of Lee’s case, Judge Marks did not take issue with Sotomayor’s description. In fact, she wrote, “Lee claims that an inmate’s air hunger is severe because of the total oxygen deprivation; The activation of the body’s basic survival instinct… and the physiological response to the inability…to alleviate air hunger….”

The judge accepted what Lee’s experts said, that “inmates executed under the protocol likely experienced severe air hunger.” Marks went on to say that "unlike pain, which is normally localized to a specific body part, air hunger is ‘a holistic discomfort sensation’…[and] can be worse than pain.”

She also did not dispute the fact that early in their executions, people killed by nitrogen hypoxia suffered from “flash pulmonary edema,” which caused them to experience the sensation of being suffocated. The judge even agreed that execution by nitrogen hypoxia” causes profound and holistic physiological discomfort…[and compares it to] ‘an elephant on your chest….’”

But at the end of the day, in her view, none of that mattered. Adopting an originalist posture, Marks says that the Eighth Amendment forbids only execution methods that its authors would have considered barbaric.

Marks offers the following examples: “Drawing and quartering, public dissection, burning at the stake, crucifixion, breaking on the wheel, flame, scourging, starving, gibbeting, or rending asunder with horses.”

Because one never hears anything about those execution methods in even the most ardent pro-death penalty states, her examples reveal how little regard the judge has for the Eighth Amendment. Judge Marks thinks that states are free to use methods that cause great suffering so long as those they choose are not intended to cause “a ‘superaddition’ of ‘Terror, pain, or disgrace.’”

The judge shows her true colors by comparing nitrogen hypoxia to execution by hanging, which, on her account, “‘could and often did result in significant pain’…” What she ignores is that no state currently authorizes hanging as an execution method, and not even President Trump’s pro-death penalty Justice Department includes it in its execution protocol.

Nitrogen hypoxia is just the latest in a long line of attempts to make the death penalty appear humane. And at least Judge Marks is candid about its failure to live up to that billing.

But what we are left with, and what Lee faces, is an execution method that can only be rendered acceptable because, as Breunig observes, “this country still countenances judicial killings, which, while carried out in the name of the American people, dissolve our rights little by little.” We must do better than that and not allow the cruelties of our era to continue just because they are a little less cruel than those known to the people who wrote our Constitution over 235 years ago.

Source: verdict.justia.com, Austin Sarat, June 9, 2026. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

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