The 11th U.S. Circuit Court of Appeals on June 8 ruled that Alabama’s nitrogen hypoxia execution method creates a “substantial risk of serious harm” to the condemned, finding the protocol unconstitutional under the Eighth Amendment. The decision blocked the scheduled execution of Jeffery James Lee, whose death warrant had been set for June 11.
Earlier, on May 28, U.S. District Judge Emily Marks had ruled that nitrogen hypoxia passed constitutional muster. In her opinion, according to court records cited by legal analysts, she wrote that only historically barbaric punishments — such as “drawing and quartering, public dissection, burning at the stake, crucifixion” — were prohibited by the Eighth Amendment, and that compared with those, nitrogen hypoxia was an “enviable way to die.”
The appeals court disagreed, citing expert testimony from Professor Damian Bailey and colleagues who documented that nitrogen hypoxia causes “prolonged and profound respiratory distress” lasting one to three minutes before loss of consciousness. The court concluded that “such suffering is over and above the mental distress that typically accompanies the knowledge of impending death by execution.”
Judge Marks, however, noted that the state of Alabama can pursue two other authorized execution methods: lethal injection and the electric chair. Lee “is not entitled to an injunction barring the state from executing him using one of those methods,” she wrote in her May 28 order.
Lee’s case is the first in which a federal trial court held a full evidentiary hearing focused solely on the constitutionality of nitrogen hypoxia. The method is authorized in five states — Alabama, Arkansas, Louisiana, Mississippi and Oklahoma — but has been used only in Alabama and once in Louisiana.
The Supreme Court has not generally been receptive to challenges to execution methods. Since 2008, the court has required inmates to prove that a method poses an “objectively intolerable risk of harm” and to identify a “known and available alternative method” that presents less risk of pain. Some originalist justices have argued that a punishment cannot be cruel unless it would have been considered cruel when the Eighth Amendment was adopted.