The Eleventh Circuit is helping Alabama suffocate Jeffrey Lee while pretending to study the suffocation.
The state’s lethal-injection pharmacopeia hasn’t just collapsed; it has rotted. Warehouses sit on expired sodium thiopental. Syringes clot in the drawer. Pharmacies flatly refuse to ship the compounds. Left with nothing, state correctional departments hunt for substitutes they cannot secure and resort to experimental asphyxiation, all while fearing the expired drugs they already have. In an order issued Monday, a three-judge panel of the Eleventh Circuit raised constitutional doubts about nitrogen hypoxia—enough, perhaps, to make the judges look serious—but did not stay Lee’s execution, scheduled for Thursday. The panel directed the district court to consider whether a firing squad is a feasible alternative. Under the Eighth Amendment’s alternative‑method requirement, the court must point to a known and available execution method; the firing‑squad remand lets it check that procedural box without expecting the state to actually adopt one. That is not judicial review. It is an alibi.
The district court had ruled last month that nitrogen gas does not violate the Eighth Amendment, a decision this publication covered at the time. The Eleventh Circuit’s order does not reverse that ruling. It simply asks the lower court to look again—while Lee’s death warrant remains in effect. This is the standard move: procedural engagement that changes nothing for the person whose life it concerns, while furnishing the appearance of judicial diligence.
Alabama first used nitrogen gas in January 2024 to execute Kenneth Smith, and witness statements described convulsions, gasping, and several minutes of conscious suffocation. The state insists the method is painless; the observable evidence contradicts that. The legal test under the Eighth Amendment, as set out in Glossip v. Gross, 576 U.S. 863 (2015), asks whether the method creates a “substantial risk of severe pain.” A method that produces visible agony in its first use is at least arguable on that score, and the panel’s own order acknowledges as much by soliciting further evidence. But a substantial risk of severe pain that is not enough to stop an execution is not a real constitutional floor—it is a scheduling preference.
If the panel believed nitrogen hypoxia is cruel and unusual, it would stay the execution. If it believed the method is constitutional, it would not order further study. What it did instead is what courts do when they want to look like they are scrutinizing a method of execution without actually stopping one: they schedule more process for after the person is dead. Lee’s lawyers will litigate the constitutionality of nitrogen gas in a case where their client can no longer testify to what it felt like. The state leans on the nitrogen respirator because it preserves the visual fiction of a humane, medicalized death; the federal courts accept the fiction. The panel asks the district court to weigh whether a firing squad—which produces rapid, certain death—is a feasible alternative, but keeps the gas protocol on the table and the execution clock running. The question itself indicts the regime. A federal appellate court is debating the comparative mercy of suffocation and gunfire while a man’s lungs will fill with nothing.
That is the clearest measure of what the death penalty has become: an administrative compliance exercise in which the state documents how it prefers to kill a person, and the judiciary signs off as long as the paperwork is filed. The court is helping the state kill a man with a method the court itself suspects may be torture, and calling the paperwork the Eighth Amendment. Jeffrey Lee’s lungs will fill with nothing while the judge reviews the marksmanship checklist.