| The current Supreme Court has had a long-running love affair with capital punishment. With few exceptions, it has done everything in its power to make it easier to sentence people to death and to execute them. |
| Five years ago, New York Times reporter Adam Liptak wrote that “the court has grown increasingly hostile to arguments made by death row inmates.” Liptak quotes Justice Sonia Sotomayor, who noted at that time, “[T]his court has consistently rejected inmates’ credible claims for relief.” |
| Since Liptak published his story, nothing has changed in the Court’s enthusiasm for the law’s ultimate punishment. That’s why it was so surprising when, on June 11, the Court turned away Alabama’s request to lift an injunction preventing it from executing Jeffery Lee by nitrogen hypoxia. |
| In fact, it was the first time the Court had ever stood in the way of a state wanting to use a method of execution. |
| However, the Court’s June 11 decision did not reach the ultimate question of whether nitrogen hypoxia violates the Eighth Amendment’s ban on cruel and unusual punishment. So, we cannot say for sure how it would rule if that issue was squarely before it. |
| But its ruling let stand an Eleventh Circuit Court of Appeals decision holding that nitrogen hypoxia is unconstitutionally cruel. That decision and the Supreme Court’s refusal to overrule it will give solace and encouragement to other death row inmates who face the prospect of dying by nitrogen hypoxia. |
| An article in The Independentcalled the Court ruling “a rare, albeit temporary, victory for opponents of capital punishment in a state known for one of the nation’s busiest death chambers, concluding an intense legal debate over the humaneness of nitrogen gas as an execution method.” Others went further in assessing its significance. |
| NBC quotes Rev. Jeff Hood, who acted as spiritual adviser for two people put to death by that method, calling it “the beginning of the end of the most horrific execution method this country has ever devised.” |
| Nitrogen hypoxia is the latest development in this nation’s ongoing quest to find an execution method that is safe, reliable, and humane. When it was first proposed, proponents claimed that “nitrogen hypoxia would be a more humane method to execute someone, as it may cause a person to lose consciousness within eight to ten seconds.” Others described it as a “'peaceful method of execution.’” |
| It is now authorized in five states: Alabama, Arkansas, Louisiana, Mississippi, and Oklahoma. But only two of them, Alabama and Louisiana, have actually put someone to death by that method. |
| In practice, nitrogen hypoxia looks anything but peaceful. According to the Equal Justice Initiative (EJI), Kenneth Smith, who in January 2024 became the first person put to death by that method “did not die within minutes as the State promised….” |
| “[W]itnesses,” EJI says, ”reported that…he began writhing in pain and his body started 'thrashing against the straps’ binding him to the gurney, 'his whole body and head violently jerking back and forth for several minutes,’ followed by 'heaving and retching inside the mask.’” |
| The federal district court that heard Jeffery Lee’s case conducted the first full trial on the constitutionality of nitrogen hypoxia. Its findings of fact offer a chilling account of what inmates killed that way experience. The court found that it “causes inmates to experience prolonged air hunger and feelings of suffocation, which evoke severe anxiety, fear, and physiological distress.” |
| The Eleventh Circuit relied on those findings to reach its conclusion that Alabama’s nitrogen hypoxia protocol could not pass constitutional muster. It sent the case back to the district court, where Judge Emily Marks issued a permanent injunction forbidding the state from executing him by that method. |
| Alabama then asked the Supreme Court to lift the injunction and allow it to proceed with Lee’s execution. It argued that “If [the Eleventh Circuit’s] ruling stands it would be unprecedented in American history. Not only does it pretend the first ever permanent ban on legislatively enacted method, but it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment.” |
| Alabama noted, “that just last year multiple federal trial and appellate courts agreed with officials in Alabama and Louisiana that nitrogen hypoxia was painless…absent some dramatic change in circumstances, officials cannot be blamed for instituting a method that prisoners and jurists alike championed for years as 'quick,’ 'humane,’ 'simple and painless.’” |
| Why the Court was not persuaded remains a mystery. Its order came with no explanation and a statement that Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented. It may have come about because of the exact nature of Alabama’s request and the rules governing emergency orders. |
| But whatever the reason, the decision in Lee’s case seems an anomaly coming from a Court that has handled many death cases through its so-called “shadow docket,” where 39% of the applications for relief are death cases. Most come from death row inmates seeking to stop an execution. Others come from states seeking the Court’s help in overturning a lower court order putting an execution on hold. |
| In addition, according to the Death Penalty Information Center, in 2025, “The United States Supreme Court denied every request to stay an execution…. Prisoners asked the Court to stay their executions for a variety of reasons, including to review the legality of methods of execution, consider constitutional errors in their cases, and enforce the Court’s own precedent. None were successful.” |
| “The last time the Court went an entire year without granting a stay of execution was in 2022, and before that, in 2013.” |
| The Court has also made it almost impossible for death row inmates to succeed in challenging methods of execution. To do so, they have to show that the challenged method creates a “substantial” or “objectively intolerable” risk of serious harm or “wanton and unnecessary pain” and that the inmate identify an available and feasible alternative method that significantly reduces that substantial risk of pain. |
| Over the course of Lee’s litigation, the courts below found that he had satisfied both prongs, with the firing squad as his preferred alternative. As Judge Marks explained, “Lee’s proposed alternative passes muster in his amended complaint after noting that the firing squad is an authorized method of execution in five states Lee drew up a blueprint for the state to follow that largely tracks Utah’s current firing squad protocol….” |
| She also pointed out that the state of Alabama had other methods available to it to carry out Lee’s execution. Her ruling was narrow. And she put it, “the result is that the state of Alabama cannot execute me by nitrogen hypoxia, no more, no less.” |
| That is where things stand for Lee. |
| As for nitrogen hypoxia, it now has the distinction of being the only method of execution that the Supreme Court has refused to greenlight. |
| It may be too soon to say for sure what would happen if and when the Court takes up a challenge to nitrogen hypoxia on its merits docket after full briefing and oral argument. But I think Hood got it right when, reacting to the Supreme Court’s decision in Lee’s case, he said, “Understand what just happened. For ten years, the Supreme Court built a wall around every death chamber in America.… The wall held through every protocol. The wall held through every gasping man.” |
| “Tonight,” he added, “the wall cracked.” |
| How far and deep that crack will spread is hard to say, but whatever else happens, what the Supreme Court did in Lee’s case is, as Hood put it, “the biggest ruling on how this country kills in a generation.” |
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