UNCONSTITUTIONAL! : Judge Emily C. Marks Declares Nitrogen Hypoxia Unconstitutional / Rev. Hood Calls Ruling a Turning Point for the Nation

Press Release

FOR IMMEDIATE RELEASE

June 9, 2026

Rev. Dr. Jeff Hood

Publicist Ruth Longenecker

FEDERAL JUDGE PERMANENTLY BLOCKS NITROGEN EXECUTION OF JEFFREY LEE

Judge Emily C. Marks Declares Nitrogen Hypoxia Unconstitutional…Rev. Hood Calls Ruling a Turning Point for the Nation

United States District Judge Emily C. Marks today permanently enjoined the state of Alabama from executing Jeffery Lee by nitrogen hypoxia, declaring the method a violation of the Eighth Amendment’s prohibition on cruel punishment. The ruling came hours after the Eleventh Circuit Court of Appeals ordered Judge Marks to immediately consider whether a firing squad constitutes a feasible alternative. She found that it does.

Judge Marks found that Lee proved by a preponderance of the evidence that execution by firing squad is feasible, readily implemented, significantly less painful than nitrogen hypoxia, and that Alabama offered no legitimate penological reason to refuse it. The court found that a firing squad directed at the heart renders an inmate unconscious within three to five seconds…before the brain can process any pain. By contrast, nitrogen hypoxia causes one to three minutes of severe air hunger, panic, physiological stress, and physical discomfort.

The Execution Intervention Project, which has pursued this truth through billboards, books, film, travel, and direct witness, hailed the ruling as a turning point not only for Jeffrey Lee but for every state that has used or is planning to use nitrogen hypoxia to kill.

Rev. Dr. Jeff Hood, writer of Suffocation by Design: The Story of America’s Newest Execution Method and a witness to two nitrogen executions, responded:

“The truth is finally free. Two federal courts have now called nitrogen executions what they are…completely unnecessary. Every attorney general who sold the method, every warden who administered it, every politician who approved it…they are all now under a scrutiny that will not stop at Alabama’s borders. Beginning with Jeffrey Lee, I pray that we are witnessing the collapse of this horrific method nationwide.”

Judge Marks’ ruling is the first permanent injunction of its kind against a nitrogen hypoxia execution protocol. It follows yesterday’s landmark Eleventh Circuit decision, which held that Alabama’s nitrogen protocol presents a substantial risk of suffering “intolerable” under the Constitution.

The state of Alabama is reviewing the decision and considering an appeal. The case is expected to reach the United States Supreme Court, which has previously allowed nitrogen executions to proceed. The Execution Intervention Project calls on Attorney General Steve Marshall to abandon that appeal. Two courts have now spoken. Every official account, every sanitized report, every claim that these deaths were peaceful is now under scrutiny that will not relent.

The ruling does not abolish capital punishment in Alabama. Judge Marks was explicit: the state retains the authority to execute by lethal injection or electrocution. What it cannot do is execute Jeffrey Lee…or anyone…by nitrogen hypoxia.

Jeffrey Lee has been on death row since 2000, sentenced to die by a judge who overrode a 7-5 jury vote for life. Today, the law has intervened on his behalf. The Execution Intervention Project prays it is not too late.

About the Execution Intervention Project

The Execution Intervention Project works at the intersection of capital punishment abolition, prophetic ministry, liberation theology, and direct pastoral accompaniment of death row prisoners.

About Rev. Dr. Jeff Hood

Rev. Dr. Jeff Hood is an author, activist, death penalty abolitionist, and spiritual advisor to prisoners on death row. He is the writer of Suffocation by Design: The Story of America’s Newest Execution Method. He has witnessed two nitrogen executions firsthand and has dedicated his ministry to bearing witness to what the state does in the name of justice.

media inquiries: info@executionintervention.org

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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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