Alabama was barred from executing Jeffery Lee today by nitrogen suffocation after the Supreme Court refused to overturn the federal trial court’s ruling that the method is unconstitutional.
Execution by Conscious Suffocation
Last year, Mr. Lee filed a federal lawsuit challenging nitrogen suffocation as cruel and unusual punishment because it “causes inmates to experience prolonged air hunger and feelings of suffocation, which evoke severe anxiety, fear, and physiological distress.” The suit claimed the method cruelly superadds pain in violation of the Eighth Amendment because it triggers the person’s survival instincts to breathe oxygen while also preventing them from doing so.
Alabama’s use of the experimental method has raised serious concerns that it causes significant and lengthy suffering. Forcing a person to breathe nitrogen gas through a facemask until they die from lack of oxygen, Justice Sonia Sotomayor recognized, inflicts the “unnecessary psychological terror” of “conscious, excruciating suffocation” and “severe emotional suffering” while “consciously experiencing the ‘primal urge to breath.’”
After a bench trial, U.S. District Court Judge Emily Marks ruled on May 28 that “[w]hile Lee establishes that death by nitrogen hypoxia involves some suffering, he fails to show that the protocol is cruel and unusual in violation of the Eighth Amendment.”
The court found that people executed by nitrogen suffocation “likely experience severe air hunger,” which “results in profound physiological discomfort and distress, as well as anxiety, fear, and dread” and “can be worse than pain,” but this suffering is not unconstitutional because they lose consciousness “in not significantly more than one to three minutes” after nitrogen begins to flow into the mask.
Mr. Lee appealed, and on Monday, the Eleventh Circuit Court of Appeals reversed the district court, finding that one to three minutes of suffering “presents a substantial risk of serious harm over and above death itself” in violation of the Eighth Amendment.
“Counting to 60 or 180 seconds is not a quick exercise,” the court wrote, “and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.”
But it is not enough to prove “intolerable” suffering—Supreme Court precedent requires that a person facing execution must also identify an alternative method of execution that is feasible, readily implemented, and significantly reduces the risk of harm. Mr. Lee identified the firing squad, but the district court did not address whether it is a valid alternative. Accordingly, the Eleventh Circuit remanded to the district court to make those findings and decide whether to stay the execution.
On Tuesday evening, the district court found that the firing squad meets the criteria for an alternative method and held that Alabama’s nitrogen suffocation protocol violates the Eighth Amendment. The court permanently blocked Alabama from using nitrogen suffocation to execute Mr. Lee.
Late Wednesday, the Eleventh Circuit denied Alabama’s request to overturn that ban. The State asked the Supreme Court to vacate the injunction and allow it to use nitrogen suffocation to put Mr. Lee to death today. The Court denied that motion in an order issued at 8:10 pm.