The Truth is Free: Nitrogen Executions Are Cruel and Unconstitutional! Judge Marks Has Changed the Game.

Jeff Hood

For years, the state of Alabama told the public that nitrogen executions were peaceful. Official reports described these deaths as quiet. The attorney general sold nitrogen as the future of capital punishment…clean, modern, merciful. Every statement, every press release, every official account served the same purpose: to make the public look away.

For a long time, it worked.

Two days ago, a federal appeals court shattered that narrative. Yesterday, a federal district judge went further. Judge Emily C. Marks declared Alabama’s nitrogen execution protocol unconstitutional.

The Eleventh Circuit Court of Appeals found that nitrogen hypoxia subjects human beings to one to three minutes of severe air hunger…panic, terror, and the body’s desperate struggle for oxygen. The court concluded that such suffering presents a substantial risk of serious harm under the Constitution. Judge Marks then acted on that finding. She permanently blocked Alabama from executing Jeffery Lee by nitrogen hypoxia, concluding that a firing squad would be faster, less painful, and that the state had no legitimate reason to refuse it.

Two courts. Two days. One conclusion.

What Alabama called humane, the courts have now recognized as cruelty.

Jeffery Lee has been on death row since 2000. He was condemned after a judge overrode a 7-5 jury vote for life. He chose nitrogen hypoxia because he believed what the state told him. He believed the assurances that it would be a peaceful death. Tonight, he sits in a cell at Holman Correctional Facility waiting to learn whether the United States Supreme Court will allow Alabama to proceed. Attorney General Steve Marshall has already appealed. The next stop is the highest court in the land.

The Supreme Court has never declared a state’s method of execution unconstitutional. Not once.

Now it faces a question unlike any it has faced before.

The same Court that allowed Alabama to begin nitrogen executions in 2024 will now confront a trial record created through the first full federal trial ever held on nitrogen hypoxia. Scientists testified. Medical experts testified. Witnesses testified. Days of evidence were placed into the public record. The mask was pulled back. The curtain was opened.

And what emerged was not mercy.

What emerged was not humanity.

What emerged was not dignity.

What emerged was suffering.

The implications stretch far beyond Alabama. Every official who promoted this method as humane. Every politician who defended it. Every agency that presented it as a painless solution. Every state considering following Alabama’s example. All of them now stand in the shadow of two federal court decisions that reached the same unavoidable conclusion…nitrogen executions are cruel and unusual.

The truth is no longer trapped inside witness statements. The truth is no longer confined to prison walls. The truth is no longer buried beneath official talking points. The truth is now part of the record. It has been spoken in open court. It has been written into judicial opinions. It has entered history.

I pray the Supreme Court has the courage to see what these courts have seen. I pray it has the courage to say what these courts have said. I pray it does what no Supreme Court has ever done before and declares nitrogen hypoxia unconstitutional nationwide. I pray Jeffery Lee becomes the last man ever forced into that mask.

Because something changed this week.

A wall cracked.

A narrative collapsed.

A secret escaped.

For years, the state controlled the story. Now the evidence speaks. Now the courts speak. Now the truth speaks.

And once the truth is free, it does not whisper.

It does not retreat.

It does not ask permission.

It rolls across the horizon like thunder.

And it will not stop.

Until everyone hears it.

Judge Marks Ruling

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On June 9, 2026, United States District Judge Emily C. Marks permanently enjoined the state of Alabama from executing Jeffery Lee by nitrogen hypoxia, declaring the protocol a violation of the Eighth Amendment's prohibition on cruel and unusual punishment. The ruling came on remand from the Eleventh Circuit Court of Appeals, which had held the day before that Alabama's nitrogen hypoxia protocol presents a substantial risk of serious harm...severe pain over and above death itself...and ordered the district court to immediately consider whether Lee's proposed alternative, execution by firing squad, was feasible and readily implemented. On remand, the sole question before Judge Marks was whether Lee had proven that the firing squad significantly reduces the substantial risk of severe pain posed by nitrogen hypoxia and whether Alabama had a legitimate penological reason to refuse it. Lee relied primarily on the expert testimony of Dr. James Williams, an emergency physician with extensive experience treating gunshot wounds, who testified that four .30-caliber bullets fired simultaneously at the heart would render an inmate unconscious within three to five seconds...before the brain can process any pain...due to two related phenomena: the delay in the brain's processing of novel stimuli, and the effects of neural stunning, which disrupts nerve transmission for hours. The state's expert, Dr. Antognini, conceded under cross-examination that nothing in his report supported his claim that an inmate would consciously suffer for eight to ten seconds after being shot, and the court excluded his opinions on that point entirely. Judge Marks found Lee's evidence credible and persuasive. She acknowledged that the finding...that being shot multiple times in the heart produces a painless death...is not intuitive, but concluded that the record supported it. Compared against the Eleventh Circuit's finding that nitrogen hypoxia causes one to three minutes of severe air hunger, panic, physiological distress, and physical discomfort, the difference was, in the court's words, "clear and considerable." Lee had therefore satisfied the second prong of the constitutional test. The court then considered Alabama's reasons for refusing to adopt the firing squad. The state argued it could not reliably source volunteer marksmen and faced potential supply chain concerns with rifles and ammunition. Judge Marks rejected both arguments. On volunteers, the court noted that Alabama's own corrections officials testified they could train and staff a firing squad execution team if the legislature authorized it, and that the inability to compel participation applies equally to every method of execution. On supply, the court found the state had presented no evidence that rifles, ammunition, sandbags or other required materials would be difficult to procure...and noted the irony that the state's own filing cited a Department of Justice report recommending firing squad as a backup precisely because of supply chain concerns around lethal injection drugs. The court was careful to limit the scope of its ruling. Judge Marks explicitly stated that the decision does not disturb Alabama's authority to carry out capital punishment by lethal injection or electrocution. Lee challenged only the nitrogen hypoxia protocol, and the injunction is narrowly tailored to that challenge. The court entered permanent judgment in Lee's favor, denied his motion for a stay of execution as moot, and issued a final order declaring Alabama's nitrogen hypoxia protocol unconstitutional.

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