by Chuck Sharman

In a whipsaw series of decisions over two weeks, federal courts first greenlighted and then canceled the execution of condemned Alabama prisoner Jeffery Lee by nitrogen hypoxia, before a divided Supreme Court of the U.S. (SCOTUS) left to stand a ruling by the U.S. Court of Appeals for the Eleventh Circuit that the method is unconstitutional.

Lee, now 50, was convicted of fatally shooting Jimmy Ellis and Elaine Thomspon during a robbery of their Orrville pawn shop in December 1998. Jurors voted 7-5 to send him to prison for life. But Dallas County Circuit Judge Jack Meigs overrode them and sentenced Lee to death in October 2000—a decision upheld by the state Court of Criminal Appeals in June 2003.

Just a year earlier, in 2002, state lawmakers had adopted lethal injection as the state’s default execution protocol, replacing electrocution, which remained available to prisoners at their option. But as drug manufacturers moved to prevent their products from being used to murder people, the state Department of Corrections (DOC) attempted an end-run and purchased a stock of sodium thiopental from the Tennessee DOC. That triggered an investigation by the federal Drug Enforcement Administration (DEA), which found the drugs had been imported from an unapproved source and seized them in 2011, as PLN reported. Though it didn’t stop executions, it slowed their pace, and state lawmakers ultimately adopted nitrogen hypoxia as an alternative execution protocol in 2018, using it for the first time in 2024. [See: PLN, June 2011, p.1; and Mar. 2024, p.24.]

Meanwhile, the state moved in 2017 to ban judicial overrides of a jury’s sentence recommendation. However, that did not incline SCOTUS to revisit Lee’s sentence when asked the following year. The high Court also refused to consider the constitutionality of nitrogen hypoxia in another Alabama execution in 2025—over the vigorous dissent of its three more liberal justices, as PLN also reported. The prisoner in that case, Anthony Boyd had chosen to die by nitrogen hypoxia when it was first offered in 2018. But he had a change of heart after the state’s first use of the new protocol in 2024, when the wife of condemned prisoner Kenneth Eugene Smith said it was like “watching someone drown without water.” The SCOTUS ruling in his case then left Boyd gasping on a gurney for nearly 40 minutes before the gas finally robbed him of enough oxygen to suffocate. [See: PLN, Feb. 2026, p.13.]

May 28: District Court Greenlights Lee’s Execution

Boyd had asked to die by firing squad, but the U.S. District Court for the Middle District of Alabama said it wasn’t convinced that would be any less painful for him than nitrogen hypoxia. Lee made the same request, but in its ruling on May 28, 2026, the same district court again held that the federal Constitution “does not guarantee inmates a painless death,” agreeing with the state that Lee, 50, had “not shown that the [nitrogen hypoxia] Protocol cruelly superadds pain.” See: Lee v. Lovelace, 2026 U.S. Dist. LEXIS 118375 (M.D. Ala.).

Lee then turned to the U.S. Court of Appeals for the Eleventh Circuit, where his case found a more favorable reception than Boyd’s did. In considering that earlier case, the appellate Court found it was barred by technicalities. But in its ruling in Lee’s case on June 8, 2026, the Eleventh Circuit was forced to consider the merits of his claim. Citing the two-prong test established by SCOTUS in Glossip v. Gross, 576 U.S. 863 (2015), the appellate Court said that the first prong was clearly established when the district court found that killing Lee with nitrogen hypoxia would leave him to “experience one to three minutes of severe air hunger, emotional distress, anxiety, physiological stress, and physical discomfort—suffering the court deemed constitutionally intolerable and beyond the mental distress typically accompanying execution.” The question then was not how much this exacerbated his pain; rather, the district court on remand was instructed to proceed to the second Glossip prong and examine whether Lee’s proposed alternative—death by firing squad—would cause him less pain and, if so, whether it was feasible for the DOC to use it for his execution. See: Lee v. Commissioner, 2026 U.S. App. LEXIS 16519 (11th Cir.).

June 9–11: Rebound from SCOTUS to District Court

Alabama then turned to SCOTUS, where its three most conservative justices this time urged taking up the case. But the majority declined, and its ruling on June 11, 2026, left the Eleventh Circuit’s decision undisturbed. See: Lovelace v. Lee, 2026 U.S. LEXIS 2468.

By that time, the district court on remand had already examined whether death by firing squad, Lee’s chosen alternative, was “feasible, readily implemented, and significantly reduces the substantial risk of severe pain posed by the [nitrogen hypoxia] Protocol,” considering also “whether the State has refused to adopt it without a legitimate penological reason.” In its decision on June 9, 2026, the district court found “each of those issues resolves in Lee’s favor.”

As to feasibility, Lee used the Utah DOC’s firing squad protocol to draw up “a blueprint for the State to follow,” the district court began. Five trained marksmen would take aim at the seated prisoner with .30-calilber rifles, one “loaded with blanks so that it is unknown which firing squad member kills the prisoner.” The process would then be “repeat[ed] . . . until no vital signs are detected.”

As to reducing the risk of severe pain, the district court refereed a battle of expert opinions, finding more credible the testimony of Lee’s expert, Dr. James Williams, that a shot in the prisoner’s “cardiac bundle” would “very likely cause immediate disruption of blood flow to the brain, resulting in loss of consciousness within three to five seconds and death shortly thereafter.” Both experts pointed to the clearly painful firing squad execution of South Carolina prisoner Mikal Mahdi in April 2025. [See: PLN, June 2025, p.33.] But the district court agreed with Dr. Williams that executioners botched their job, not that the protocol was flawed.

That left the DOC to argue that it must nevertheless proceed with execution by nitrogen hypoxia for “legitimate penological reasons”—specifically, that it “cannot reliably source volunteers ‘willing and capable of serving in a firing … squad’” and that it “may be unable to procure materials used in firing squad executions.” In response, the district court said that “[n]either reason is persuasive.” It therefore enjoined the DOC from using the nitrogen hypoxia protocol to kill Lee. See: Lee v. Lovelace, 2026 U.S. Dist. LEXIS 127119 (M.D. Ala.).

“For the first time, a court has acknowledged what I and so many others have seen with our own eyes,” death penalty opponent Rev. Jeff Hood told the Alabama Reflector. “[N]itrogen executions are a unique form of horror.”  

Additional source: Alabama Reflector

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