Alabama nitrogen gas ruling could reverberate beyond state

Two federal court rulings last month that barred Alabama from carrying out nitrogen gas executions could echo beyond Alabama, say experts, including in Ohio where nitrogen gas executions have been proposed by Republican lawmakers.

The decisions at three levels of the federal judiciary make future adoptions of nitrogen gas uncertain and raise questions about the potential expansion of firing squads, which only four other states employ.

“I think it will likely stop the spread to other states trying to use (nitrogen) gas,” said John H. Blume, a constitutional law professor at Cornell University. “There were states looking into this after Alabama began, and at least one that passed this, but I think this ruling, and the Supreme Court refusing to lift it will probably encourage states that were thinking about it to abandon that effort, or not to use it.”

Experts interviewed by the Alabama Reflector said that the combined rulings issued by the three-judge panel on the U.S. 11th Circuit Court of Appeals and U.S. District Judge Emily Marks represent a seminal moment in the history of nitrogen gas executions, introduced by Alabama in 2024 but reported to have left those subjected to the method gasping and convulsing for minutes.

“This is the first time we have had federal courts decide this question; whether nitrogen gas, used in executions, is a constitutional method of execution,” said Robin M. Maher, executive director of the Death Penalty Information Center. “This is the first time we have had that decision. It is of enormous significance. That is a meritorious decision.”

Multiple messages were sent to the Alabama Attorney General’s Office and the Alabama Department of Corrections seeking comment.

The U.S. Supreme Court put a punctuation mark on that decision after the justices declined to stay the lower court decisions.

“I am not stunned by this, and I don’t know if the state of Alabama should be either,” Blume said. “It seemed to be clear that this method was not operating like its proponents initially said it would, that it would painlessly kill someone in a matter of seconds.”

With the courts prohibiting nitrogen gas executions in Alabama at least for now, the state will have two methods currently allowed in state statute: lethal injection and electrocution.

“What I will tell you is that if it is found unconstitutional, then we will have to find another way to perform executions,” said Republican Louisiana Rep. Nicholas Muscarello,who sponsored a 2024 bill adding nitrogen gas and electrocution to that state’s execution methods, in an interview on Thursday.

He added that “If the court says it is unconstitutional, then clearly we can’t use it.”

The Jeffery Lee case

Since 2024, several inmates had unsuccessfully challenged nitrogen gas as cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution.

At first, Jeffery Lee’s challenge appeared to go the same way. Lee, convicted of killing two people during a robbery in Orrville in 1998, argued in court that nitrogen gas would cause intense suffering and that execution by firing squad would be quicker and more humane. Marks initially ruled against Lee in late May. The district judge concluded that Alabama’s nitrogen gas protocol exposed someone who is getting executed to “air hunger” for about one to three minutes, but said that did not rise to the level of cruel and unusual punishment.

But a three-judge panel of the U.S. 11th Circuit Court of Appeals reversed Marks and said that the nitrogen gas protocol from Alabama “presents a substantial risk of serious harm over and above death itself.” The panel ordered Marks to determine whether the execution method that Lee proposed, death by firing squad, is a feasible alternative.

Marks ruled the following day that a firing squad was feasible and permanently blocked the state from using nitrogen gas, a ruling the appeals court upheld but on a 2-1 vote. The Alabama Attorney General’s Office asked the U.S. Supreme Court to lift Marks’ injunction and effectively reverse her finding.

“It was really a dirty move, in my mind, for Alabama to say, ‘Let’s do an end run around this whole thing, and just ask the court to lift the stay. Then, we don’t have to face the clearly erroneous standard for reviewing what the trial court found. We don’t even have to get to an appeal; there will be no appeal,’” said Corinna Barrett Lain, a law professor at the University of Richmond who has written a book on lethal injection.

The Attorney General’s Office, in its appeal to the nation’s high court, noted that courts have allowed the state to execute individuals using nitrogen gas.

The difference in this case, according to Lain, was that parties were allowed to present facts that the court could consider. Prior lawsuits were Eighth Amendment challenges that requested preliminary injunctions to halt the executions. Attorneys for the plaintiffs could offer some facts, but they did not include a full hearing with testimony.

“For me, I have been lamenting the lack of a trial on the merits, for a long time, and I have read about media accounts of what the state is doing,” Lain said.

Nationwide impact

After Alabama conducted its first nitrogen gas execution in January 2024 — where media witnesses reported Kenneth Eugene Smith convulsing for two minutes and breathing heavily for seven minutes — Alabama Attorney General Steve Marshall said at a news conference that the execution was “textbook” and invited other states to adopt the execution method.

“Alabama has done it, and now so can you,” he said.

Nitrogen gas was implemented in part due to concerns from state officials about a shortage of the drugs used in lethal injections. In 2022, Alabama botched three consecutive lethal injection executions, leading to a brief moratorium on executions.

In those three instances, the state had a difficult time getting access to the veins of inmates to carry out the execution.

“This is a problem inherent in lethal injection because the population of death row is a geriatric population with histories of poor health, and quite often, histories of IV drug use,” said Lain. “This is a geriatric population with historically weak veins.”

Muscarello said lethal injection was problematic because “we couldn’t get the drugs for the lethal injection, so we had to have this bill to allow you to get the drugs.”

But through Friday, only four other states had adopted the protocol and only one besides Alabama, Louisiana, had conducted an execution with it. The ruling casts doubt on the validity of the execution method.

“I think they should read closely the opinion by the 11th Circuit, actually, both opinions by the 11th Circuit, and read the factual findings that were made in this case,” said Bernard E. Harcourt, a Columbia University law professor who is representing another individual who is part of the consolidated cases in which Lee was removed.

Alabama is currently seeking to execute Lee by lethal injection.

Muscarello said the state has an obligation to carry out the executions that were decided by a jury.

“It is legal in Louisiana,” he said. “And we told the victim’s families that we were going to execute a person that brutally murdered them. We made that commitment; and my position is that when you make that commitment, you honor that commitment.”

He said he wanted to bring legislation “to open up every measure available to allow the state of Louisiana to honor the victim’s families.” Muscarello had his staff review other states to include other methods of execution, which included nitrogen gas.

But the representative said “the state of Louisiana will follow the law.”

“And if the federal courts say we can’t use nitrogen hypoxia, then we will remove that from the protocol,” he said.

The ruling, however, could also lead states to consider execution by firing squad.

“The execution process should be quick, and death should occur relatively quickly,” said Deborah W. Denno, a professor at Fordham School of Law who studies methods of execution

Firing squads are not currently authorized in Alabama law, and state attorneys argued during the process that they could not find trained shooters or find a facility for firing squad executions in a reasonable amount of time.

Two circuit judges who heard Lee’s appeal wrote that in the opinion testimony that the Alabama Department of Corrections had “not substantially shown that any difficulties with retrofitting an execution chamber and assembling a team of five marksmen would make this method unfeasible or unimplementable.”

Denno said that the death chamber could be adapted relatively easily to execute people by firing squad, expert marksmen can be found and there is an abundance of firearms and ammunition.

Lain suggested that states have resisted adopting firing squads because “it is too explicit” in showing the outcomes of capital punishment.

“The state is literally shedding blood in our name,” she said.

Lain said that prior to the ruling, Alabama has essentially been able to control the narrative.”

During the nitrogen gas executions, she said, Alabama “didn’t say, ‘You know what, we are going back to the drawing board,’ but said, ‘Yeah, let’s keep doing that.’ And that ‘it was textbook.’ This is the very thing that the Eighth Amendment was written for.”

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