9.0: The Lee Bench Trial: The First Trial in the Country and the Candor That Undid It
For more than two years, the constitutionality of nitrogen hypoxia had been litigated in fragments. Judges ruled on preliminary injunctions, on stays, on motions filed in the shadow of an execution warrant with hours left on the clock. No court had ever sat down, heard days of sworn expert testimony, weighed the autopsies and the demonstrations and the competing physiology, and decided---on a full record, with time to think---whether the gas was cruel. In the spring of 2026, one finally did. The case was Jeffery Lee's. The judge was Chief U.S. District Judge Emily C. Marks. And the result was the most detailed judicial account of what nitrogen does to a conscious human body that any American court had yet produced. It was also a green light. Marks examined the suffering in more granular detail than any judge before her, named it, credited it---and then permitted it. The candor of that decision would, within days, become the instrument of its undoing.
I. The Man and the Override
Jeffery Lee did not begin as a test case. A jury convicted him of capital murder for the deaths of Jimmy Ellis and Elaine Thompson, killed during a December 1998 robbery of a pawn shop near the small town of Orrville, Alabama.^1^ At the penalty phase the jury voted seven to five that Lee should serve life imprisonment without parole. Under the law then in force, the trial judge overrode that recommendation and imposed a sentence of death.^2^ Alabama abolished judicial override in 2017. Lee remained on death row under a sentence that, by the standards his own state had since adopted, a jury had declined to impose.
There is a further irony in how Lee came to face the gas. After exhausting his appeals, he had once challenged Alabama's lethal injection protocol; that suit became moot in 2018 when he elected to be executed by nitrogen hypoxia, a method the legislature had only just authorized and no state had ever used.^3^ At the time, nitrogen was the promise---the painless alternative, the humane exit from the troubled machinery of the needle. Seven years and seven nitrogen executions later, Lee had sued to stop the very method he had chosen. On August 22, 2025, he filed an action under 42 U.S.C. § 1983 against the Commissioner of the Alabama Department of Corrections and the warden of Holman Correctional Facility, alleging that execution by nitrogen hypoxia induces "conscious suffocation" that "is cruel and unusual because it superadds terror and pain during the execution."^4^ In an amended complaint filed February 2, 2026, he proposed a single alternative: execution by firing squad, modeled on Utah's protocol.^5^
Lee's was not the only such challenge. His case had been consolidated with those of other Alabama prisoners attacking the same protocol; but when the state signaled it would seek a date for Lee, his case was carved out and sent ahead alone---a single prisoner placed on a fast track to a single, dispositive trial.^6^ The state moved quickly. It asked the Alabama Supreme Court to set Lee's execution on February 9, 2026; that court authorized the Governor to act on April 2; and on April 15, 2026, the Governor fixed a thirty-hour execution window opening at midnight on June 11, 2026.^7^ The trial that would decide whether the gas could be used at all was set to begin less than two weeks later.
II. The Standard on Trial
The trial would be governed by a line of Supreme Court cases that has made method-of-execution challenges among the hardest claims in American law to win. Under Glossip v. Gross and Bucklew v. Precythe, a condemned prisoner must prove two things. First, that the challenged method presents "a substantial risk of serious harm"---severe pain over and above death itself. Second, that there exists "a feasible and readily implemented alternative method of execution that would significantly reduce" that risk.^8^ It is not enough to show that dying will hurt. The prisoner must show that it will hurt more than it has to, and must hand the state a better way to kill him. The requirement traces to Baze v. Rees and Glossip v. Gross, where the Court held that the Eighth Amendment forbids not pain as such but a method that "superadds" pain beyond what is necessary to cause death---and that a challenger who objects must point to a known and available substitute. It is a comparative test, nearly unique in constitutional law: the condemned may not simply argue that the state's chosen method is cruel; he must come to court with a blueprint for a better killing. Lee came with the firing squad.
The doctrine carried an irony that sat heavily over Lee's case. Bucklew itself had involved a prisoner who proposed nitrogen hypoxia as his alternative---and the Court had turned him away, faulting his reliance on out-of-state reports and "the need for additional study."^9^ The method offered to the Justices in 2019 as the humane option was, by 2026, the method on trial. And the Court's own framework---"the Eighth Amendment does not guarantee a prisoner a painless death"^10^---meant that Marks would be asking not whether nitrogen hurt, but whether it crossed a line the Supreme Court had drawn very far down the field.
III. The Protocol
What the parties were fighting over was a procedure Alabama had by then performed seven times. The protocol, as the court described it, causes death by forcing pure nitrogen gas through an industrial respirator mask until the inmate is declared dead.^11^ The execution team straps the condemned to a gurney with a chest and shoulder harness of nylon webbing, attaches pulse oximeters to monitor oxygen saturation, and seals a mask over his face. After the warrant is read and any final statement is made, the warden opens the flow. Ultra-high-purity nitrogen displaces the breathable air until the inmate is inhaling almost nothing but nitrogen; a one-way valve vents exhaled carbon dioxide so that he cannot rebreathe it. Deprived of oxygen, the brain fails, and unconsciousness and death follow.^12^ Lee was scheduled to be the eighth person executed this way in Alabama. One nitrogen execution had taken place beyond the state's borders: in March 2025, Louisiana used a materially similar protocol to put Jessie Hoffman to death---the only nitrogen execution to date outside Alabama.
IV. Three Days in Montgomery
The trial opened on April 27, 2026, and ran three days. It was, as every account would note, the first full bench trial in the country on the constitutionality of nitrogen hypoxia.^13^ Over those three days Marks heard eleven witnesses---seven lay witnesses and four experts---admitted hundreds of exhibits running to thousands of pages, and watched video demonstrations of both the Alabama and the Louisiana nitrogen systems.^14^ The court did not merely read about the procedure. It watched the nitrogen systems of two states run on video, and it heard the execution team itself describe how the Alabama protocol is carried out. Lee's trial team, drawn from the firm Arnold & Porter and the federal defenders, had built an unusually complete record, using the Supreme Court's own framework as the scaffolding for the challenge.^15^ The experts divided the case cleanly. Lee called three: Dr. Richard Schwartzstein and Dr. Julie Bastarache, specialists in pulmonology and critical care who testified to what air hunger is and does, and Dr. James Williams, who testified to the firing squad Lee had proposed. The state called one: Dr. Joseph F. Antognini, an anesthesiologist, who testified that the prisoners felt almost nothing at all.^16^
V. The Anatomy of Air Hunger
Lee's case rested on a single physiological phenomenon: air hunger. His experts described it not as pain in the ordinary sense, but as something the court would ultimately find worse. Air hunger, the court credited, "triggers the body's 'extreme physiologic need to get more oxygen'" and produces "intense physiologic stress that causes intense suffering." Because the inmate cannot answer the alarm---cannot do the one thing his body is screaming at him to do---a "'vicious cycle of increasing air hunger and panic symptoms' can occur."^17^
The court accepted that this form of suffering is distinct from, and can exceed, ordinary pain. Unlike pain, which is normally localized to a part of the body, air hunger is "a holistic discomfort sensation," and "because it evokes a fear of dying, air hunger can be worse than pain." The physiology was precise. As the partial pressure of oxygen falls below sixty millimeters of mercury, a person's drive to breathe "takes off," leaving him "desperate to try to do something to correct the hypoxemia"; and because the protocol's purpose is to drive that pressure all the way to zero, it evokes "an 'incredibly strong stimulus' to breathe." The inmate's knowledge that nothing he does will help, the court found, "would exacerbate his anxiety and the air hunger itself." And nothing in the procedure could ease it. In a clinic or a laboratory the dyspneic subject can be calmed, but "in an execution setting," the court credited, "such reassurance is not possible because the goal is to cause the inmate's death."^18^
Then came the autopsies. Of the inmates executed under the protocol who had been autopsied, the court found, all four showed evidence of flash pulmonary edema---a condition in which the lungs "almost instantaneously" fill with fluid, making it "extremely difficult to breathe." The court credited that this is "an abnormal autopsy finding," that it "indicates severe physiological stress," and that it would have occurred "very early on in the executions" while the men were still conscious and "when air hunger was occurring and reaching its peak."^19^ The bodies on the autopsy tables bore physical evidence of the suffering the state insisted was minimal.
Lee's experts also dismantled the state's central scientific defense before it was made. The state would argue that air hunger is driven mainly by the buildup of carbon dioxide, which the protocol's one-way valve vents away. Not so, the court credited: "hypoxia causes dyspnea even when carbon dioxide levels are normal," and so the lack of carbon-dioxide buildup in the mask "does not eliminate or reduce the possibility of severe air hunger."^20^ The venting of the gas did nothing to relieve the suffocation; it only removed the explanation the state would lean on.
VI. "On an Exercise Bike": The State's Case
The state's case was carried almost entirely by Dr. Antognini, and it asked the court to believe that the men under the mask experienced very little. Antognini opined that the protocol causes a rapid onset of unconsciousness---the Eleventh Circuit would later record his estimate as roughly sixty to seventy-five seconds after the gas begins to flow---and that the inmate would experience "minimal to no suffering or discomfort or pain." Whatever distress there was, he testified, "is going to be very, very brief if at all present," on the order of "ten to twenty seconds"; and any air hunger would be merely "mild," comparable to the shortness of breath one might feel "on an exercise bike."^21^ He attributed what air hunger there was primarily to the buildup of carbon dioxide---the very theory Lee's experts had refuted---and rested his conclusions on a 1963 study of three healthy volunteers who rapidly inhaled nitrogen, on case reports of suicides using inert gas, on an aviation study of hypoxia, and on workplace-accident reports of nitrogen deaths.^22^
On the alternative, Lee's third expert answered the state. Dr. Williams testified that a firing squad of trained marksmen firing at the heart would render a person unconscious within three to five seconds, before the brain could process pain, because the "complete cessation of blood flow" produces a "profoundly deeper" unconsciousness than nitrogen ever could.^23^ The contrast the trial drew was stark: minutes of conscious suffocation set against seconds of oblivion.
VII. The Contested Minutes
At the center of the trial lay a single contested number: how long the condemned remains conscious, and therefore how long he can suffer. The gap between the experts was enormous. Antognini placed unconsciousness inside a minute and a quarter, and the suffering, if any, inside twenty seconds. Dr. Bastarache testified that the inmates examined had likely remained conscious for three to seven minutes.^24^ Dr. Schwartzstein went further still, opining that a person executed by nitrogen continues to suffer pain for three to five minutes even after losing consciousness---an opinion the court ultimately set aside, reasoning that an unconscious person "does not experience or perceive dyspnea of a constitutionally relevant kind."^25^ The court also noted how little either side had proven about the texture of those minutes: beyond Antognini's unelaborated remark that consciousness is "a continuum," it had heard no expert testimony on whether awareness flickers during a nitrogen execution, and little on whether the air hunger holds steady or builds.^26^
VIII. The Findings
After three days of testimony and weeks of deliberation, Marks issued her findings on May 28, 2026. They were, by the standards of method-of-execution rulings, extraordinarily candid. The court found that an inmate executed under the protocol consciously experiences "severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort" for "one to three minutes."^27^ It found that the protocol "likely causes severe air hunger---the most severe form of breathing discomfort---for one to three minutes" and "profound physiological discomfort and distress"; that "air hunger causes extreme emotional distress, panic, anxiety, and fear because breathing is essential to human life"; that patients "often describe air hunger as akin to suffocation or drowning"; and that "many people find air hunger worse than pain because it is associated with the fear of dying."^28^ No court had ever written so plainly about what this method does.
IX. The Permission
And then the court permitted it. The candor of the findings made the conclusion that followed all the more startling. "While Lee establishes that death by nitrogen hypoxia involves some suffering," Marks wrote, "he fails to show that the protocol is cruel and unusual in violation of the Eighth Amendment."^29^ She underscored how steep the climb was. No court, after a full trial, had ever held a state's method of execution unconstitutional under the Eighth Amendment; to rule for Lee would be to do something no judge in the country had yet done, and the doctrine the Supreme Court had built made the doing nearly impossible.
The reasoning turned on the distinction at the heart of Glossip and Bucklew. Most of the anguish the court had catalogued, it concluded, flowed not from the method but from the prisoner's awareness that he is about to die and from his body's survival instincts---an "unfortunate, but inescapable consequence of death" that "attends every execution and cannot be avoided."^30^ The relevant question was not whether nitrogen produced terror, but whether it added pain "well beyond what's needed to effectuate a death sentence."^31^ Measured against the methods the Eighth Amendment was historically understood to forbid---"drawing and quartering, public dissection, burning at the stake, crucifixion"---the court found that nitrogen did not. It inflicted only "the necessary suffering involved in any method employed to extinguish life," and "the physiological discomfort caused by the Protocol," the court held, "does not violate the Constitution"; the Eighth Amendment, it emphasized, "does not demand the avoidance of all risk of pain in carrying out executions."^32^
Having found no constitutional violation in the method, the court did not reach the second half of the test. It made no finding on whether the firing squad Lee proposed was a feasible and less painful alternative.^33^ That question---the one Anthony Boyd had lost on, the one Marks had built her Boyd opinion around---was simply left open. Alabama's attorney general called the result a vindication: after "the first full trial on nitrogen hypoxia in the entire country," he said, a federal court had found the method constitutional and affirmed "that the question of capital punishment belongs to the people and their representatives, not the courts."^34^
X. The Candor and the Crack
It is worth pausing on what the May 28 ruling actually was, because its character explains everything that followed. It was not a denial that nitrogen hypoxia inflicts severe suffering. It was an admission that it does---the fullest such admission any court had made---paired with the legal conclusion that the suffering did not count. The mechanism of that result was a particular reading of the Constitution. To hold that one to three minutes of severe air hunger was tolerable, the court measured nitrogen against the atrocities the Eighth Amendment was written to forbid---the rack, the stake, the disemboweling blade---and reasoned that anything short of such deliberate barbarity is allowed. Critics charged that this approach drains the clause of meaning, fixing "cruel and unusual" at the cruelties of the eighteenth century rather than measuring it, as the Supreme Court has long instructed, against "the evolving standards of decency that mark the progress of a maturing society." One scholar called the opinion "remarkable and shockingly candid": Marks had drawn an unusually detailed picture of the pain and then given the state leave to inflict it.^35^
That structure was the decision's vulnerability. By finding as fact that the protocol causes one to three minutes of severe, conscious air hunger---worse than pain, written into the autopsies, unrelieved by the mask---Marks had assembled, in her own words and under the deferential standard that shields a trial court's factual findings on appeal, exactly the record an appellate court would need. She had done the hardest part of a prisoner's case for him. What remained was a question of law: whether one to three minutes of that suffering is, constitutionally, too much. Marks had answered no. She had also, in the same opinion, written down every fact necessary to answer yes.
Eleven days later, the Eleventh Circuit took her findings, left them undisturbed, and answered yes.
Endnotes
1. Lee was convicted of capital murder for the December 12, 1998 killings of Jimmy Ellis and Elaine Thompson during a robbery of a pawn shop near Orrville, Alabama. See Lee v. State, 898 So. 2d 790, 807 (Ala. Crim. App. 2001); Lee v. Comm'r, Ala. Dep't of Corr., No. 26-11864, slip op. at 4 (11th Cir. June 8, 2026).
2. The jury voted seven to five to recommend life imprisonment without parole; the trial court overrode that recommendation and imposed death. Lee v. State, 898 So. 2d at 807--08. Alabama abolished judicial override in 2017.
3. Lee's challenge to Alabama's lethal injection protocol became moot in 2018 when he elected to be executed by nitrogen hypoxia, then newly authorized and never yet used. Lee v. Comm'r, slip op. at 5.
4. Complaint, Lee v. Hamm, No. 2:25-cv-00680-ECM (M.D. Ala. filed Aug. 22, 2025), Doc. 1; Amended Complaint, Doc. 40 (alleging that execution by nitrogen hypoxia induces "conscious suffocation" that "is cruel and unusual because it superadds terror and pain during the execution"). Lee sued before any execution date was set "to avoid being denied relief . . . on timeliness grounds." Lee v. Comm'r, slip op. at 5 (quoting Doc. 1 ¶ 3). The original defendants were Commissioner John Q. Hamm and Warden Terry Raybon; after Hamm retired, Greg Lovelace became Commissioner on May 1, 2026 and was substituted, giving the case its eventual caption, Lee v. Lovelace.
5. Amended Complaint, Doc. 40 (Feb. 2, 2026) (proposing execution by firing squad, modeled on Utah's protocol). See Lee v. Comm'r, slip op. at 3, 6.
6. Other Alabama prisoners' challenges were consolidated as In re Alabama Nitrogen Hypoxia Protocol Litigation, No. 2:24-cv-111-ECM (M.D. Ala.); Lee's case was deconsolidated when the State signaled it would seek an execution date for him. Lee v. Comm'r, slip op. at 6 n.1.
7. The State moved to set Lee's execution on February 9, 2026; the Alabama Supreme Court authorized the Governor to set a date on April 2, 2026; and on April 15, 2026, the Governor fixed a thirty-hour execution window opening at 12:00 a.m. on June 11, 2026 and closing at 6:00 a.m. on June 12, 2026. Lee v. Comm'r, slip op. at 3, 6.
8. Lee v. Lovelace, No. 2:25-cv-00680-ECM, slip op. at 24--25 (M.D. Ala. May 28, 2026); see Baze v. Rees, 553 U.S. 35, 50, 52 (2008); Glossip v. Gross, 576 U.S. 863, 877 (2015); Bucklew v. Precythe, 587 U.S. 119, 134 (2019); Nance v. Ward, 597 U.S. 159, 164 (2022).
9. Bucklew v. Precythe, 587 U.S. 119, 139--40 (2019) (rejecting the prisoner's proposed nitrogen-hypoxia alternative for, among other reasons, reliance on out-of-state reports "indicating the need for additional study").
10. Ibid, 133.
11. Lee v. Comm'r, slip op. at 7 (quoting Grayson v. Comm'r, Ala. Dep't of Corr., 121 F.4th 894, 896 (11th Cir. 2024)).
12. Ibid, 8. Lee was to be the eighth person executed by nitrogen hypoxia in Alabama; Louisiana had executed Jessie Hoffman, Jr. by a materially similar protocol in March 2025, the only nitrogen execution to date outside Alabama.
13. Ibid, 3 (describing the April 27--29, 2026 proceeding as "the first such trial in the country").
14. Lee v. Comm'r, slip op. at 3 (eleven witnesses---seven lay and four expert---hundreds of exhibits totaling thousands of pages, and video demonstrations of the Alabama and Louisiana nitrogen systems); see also Lee v. Lovelace, 2026 WL 1493098, at *6 (M.D. Ala. May 28, 2026) (same). The lay witnesses included then-Commissioner John Q. Hamm, see Trial Tr. (Apr. 27, 2026), Doc. 146, at 216:7--11, and two execution-team members, Wardens Brandon McKenzie and Fitzgerald Clemons, see Trial Tr. (Apr. 28, 2026), Doc. 147, at 171:2--17 (McKenzie), 210:22--211:7 (Clemons).
15. Lee's trial team included attorneys from Arnold & Porter and federal public defenders, who assembled an unusually complete factual record built on the Supreme Court's own method-of-execution framework.
16. Lee v. Comm'r, slip op. at 6--7. Lee's experts were Dr. Richard Schwartzstein and Dr. Julie Bastarache (pulmonology and critical care) and Dr. James Williams (the firing-squad alternative); the Commissioner's expert was Dr. Joseph F. Antognini (anesthesiology). The parties also stipulated to admission of Dr. Brian McAlary's declaration.
17. Lee v. Lovelace, 2026 WL 1493098, at *14 (M.D. Ala. May 28, 2026) (crediting that air hunger "triggers the body's 'extreme physiologic need to get more oxygen'" and produces "intense physiologic stress that causes intense suffering," and that because the inmate cannot answer that need a "'vicious cycle of increasing air hunger and panic symptoms' can occur").
18. Ibid at *15 (crediting that air hunger is "a holistic discomfort sensation" that "can be worse than pain"; that as the partial pressure of oxygen falls below sixty millimeters of mercury the drive to breathe "takes off," leaving the person "desperate to try to do something to correct the hypoxemia"; that the protocol evokes "an 'incredibly strong stimulus' to breathe"; and that the inmate's awareness that he cannot alleviate his dyspnea "would exacerbate his anxiety and the air hunger itself"); see id. at *25 (crediting that air hunger can be alleviated by reassurance in clinical and research settings but that "in an execution setting, such reassurance is not possible because the goal is to cause the inmate's death").
19. Ibid at *15 (crediting that all four autopsied inmates showed flash pulmonary edema, "an abnormal autopsy finding" in which the lungs "almost instantaneously" fill with fluid; that it "indicates severe physiological stress"; and that it would have occurred "very early on in the executions" while the inmates were conscious and "when air hunger was occurring and reaching its peak").
20. Ibid at *16 (crediting that "hypoxia causes dyspnea even when carbon dioxide levels are normal" and that the venting of carbon dioxide "does not eliminate or reduce the possibility of severe air hunger").
21. Lee v. Lovelace, DE 176 (M.D. Ala. May 28, 2026) (quoting Apr. 29, 2026 Trial Tr., Doc. 149) (Dr. Antognini opining that the inmate would experience "minimal to no suffering or discomfort or pain," that any distress "is going to be very, very brief if at all present"---"on the order of ten to twenty seconds"---and that any air hunger would be only "mild," akin to the shortness of breath felt "on an exercise bike"); see Lee v. Comm'r, slip op. at 10 (recording Dr. Antognini's estimate of unconsciousness within roughly sixty to seventy-five seconds).
22. Lee v. Lovelace, DE 176 (quoting Apr. 29, 2026 Trial Tr., Doc. 149) (Dr. Antognini attributing air hunger primarily to carbon-dioxide buildup and resting his opinions on a 1963 study of three volunteers rapidly inhaling nitrogen, case reports of inert-gas suicides, an aviation hypoxia study, and workplace-accident reports of hypoxia deaths).
23. See Trial Tr. (Apr. 28, 2026) (Dr. Williams opining that a firing squad of trained marksmen firing at the heart would render a person unconscious within three to five seconds, before the brain could process pain, because the "complete cessation of blood flow" produces a "profoundly deeper" unconsciousness than nitrogen); see also Lee v. Lovelace, No. 2:25-cv-00680-ECM (M.D. Ala. June 9, 2026) (permanent-injunction order crediting this testimony).
24. Lee v. Comm'r, slip op. at 10 (Dr. Antognini opining unconsciousness within roughly sixty to seventy-five seconds; Dr. Bastarache opining that four previously executed inmates remained conscious for three to seven minutes).
25. Ibid, 11 n.3 (Dr. Schwartzstein opining that pain continues for three to five minutes after unconsciousness; the district court declining to consider the opinion because an unconscious person "does not experience or perceive dyspnea of a constitutionally relevant kind" (quoting Lee v. Lovelace, 2026 WL 1493098, at *17)).
26. Lee v. Lovelace, DE 176 (quoting Apr. 29, 2026 Trial Tr., Doc. 149, at 66:9--11) (Dr. Antognini describing consciousness as "a continuum," without elaboration; the court noting it heard no expert testimony on whether awareness fluctuates during a nitrogen execution).
27. Lee v. Lovelace, 2026 WL 1493098, at *25 (M.D. Ala. May 28, 2026) (finding that an inmate "consciously" experiences "severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort" for "one to three minutes").
28. Ibid at *22 ("profound physiological discomfort and distress"; "likely causes severe air hunger---the most severe form of breathing discomfort---for one to three minutes"); id. at *24 ("air hunger causes extreme emotional distress, panic, anxiety, and fear because breathing is essential to human life"; patients "often describe air hunger as akin to suffocation or drowning"; "[m]any people find air hunger worse than pain because it is associated with the fear of dying").
29. Lee v. Lovelace, DE 176 (M.D. Ala. May 28, 2026) ("While 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"); see also id. (observing that the Supreme Court has never held a state's method of execution to be cruel and unusual).
30. Lee v. Lovelace, 2026 WL 1493098, at *22--23 (M.D. Ala. May 28, 2026) (attributing the distress primarily to the inmates' knowledge that they are going to die and their survival instincts, and reasoning that the anxiety air hunger evokes is "more an 'inescapable consequence of death' . . . than '"superadd[ed]" pain well beyond what's needed to effectuate a death sentence'" (quoting Baze, 553 U.S. at 50, and Bucklew, 587 U.S. at 136--37)); see id. (quoting Boyd v. Hamm, 2025 WL 2884410, at *20--21 (M.D. Ala. Oct. 9, 2025)) ("Psychological and emotional pain are thus unavoidable consequences of capital punishment under any method of execution, past or present.").
31. Lee v. Lovelace, 2026 WL 1493098, at *22, *25 (quoting Bucklew, 587 U.S. at 136--37) (asking whether the protocol inflicts pain "well beyond what's needed to effectuate a death sentence").
32. Lee v. Lovelace, DE 176 (comparing nitrogen hypoxia to historically barbaric methods---"drawing and quartering, public dissection, burning at the stake, crucifixion"---and concluding the protocol inflicts only the "necessary suffering involved in any method employed to extinguish life"; that "the physiological discomfort caused by the Protocol does not violate the Constitution"; and that the Eighth Amendment "does not demand the avoidance of all risk of pain in carrying out executions"). See also 2026 WL 1493098, at *23.
33. Lee v. Comm'r, slip op. at 11--12 (because it found no substantial risk of serious harm, the district court did not reach Lee's proposed firing-squad alternative); see 2026 WL 1493098, at *22, *25.
34. Statement of Alabama Attorney General Steve Marshall (May 28, 2026) (describing the ruling, after "the first full trial on nitrogen hypoxia in the entire country," as a finding that the method is constitutional and an affirmation "that the question of capital punishment belongs to the people and their representatives, not the courts").
35. Austin Sarat, Judicial Decision About Nitrogen Hypoxia Renders the Constitutional Prohibition of Cruel Punishment Meaningless, Verdict (Justia), June 9, 2026 (describing the decision as "remarkable and shockingly candid" and criticizing its originalist reading of the Cruel and Unusual Punishments Clause). On the governing interpretive standard, see Trop v. Dulles, 356 U.S. 86, 101 (1958) ("evolving standards of decency").
9.1: The Reversal: Severe Pain Over and Above Death Itself
Eleven days after Chief Judge Emily C. Marks found that Alabama's nitrogen protocol inflicts one to three minutes of severe, conscious air hunger---and then permitted it---three judges of the United States Court of Appeals for the Eleventh Circuit took those findings, accepted every one of them, and reached the opposite conclusion of law. On June 8, 2026, in a per curiam opinion, the panel held that Alabama's protocol "presents a 'substantial risk of serious harm'---severe pain over and above death itself."^1^ It was the first time a federal appellate court had found that execution by nitrogen most likely violates the Eighth Amendment. The court did not call a single one of Marks's factual findings wrong. It did not need to. The findings were the case.
I. The Appeal
Lee appealed the day judgment was entered against him, and he asked the Eleventh Circuit for a stay of his execution. Time was short. The Governor had set a thirty-hour execution window opening at midnight on June 11, and the trial ruling had come down only on May 28. The court expedited briefing and heard oral argument by videoconference on Friday, June 5; it issued its decision the following Monday.^2^ The panel---Circuit Judges Jordan, Luck and Kidd---wrote per curiam, without a named author and without dissent. The three were, on that day, unanimous. Within two days one of them would break ranks, but that came later, and at a different stage. On June 8 they spoke with one voice.
The opinion opened by placing Alabama in company. Five states, the court noted, now authorize nitrogen hypoxia---Alabama, Arkansas, Louisiana, Mississippi and Oklahoma---though only two had ever used it.^3^ The method was spreading on paper faster than it was being tested in fact, and the question the panel faced was one no federal appeals court had yet answered on a full evidentiary record: not whether a hurried preliminary injunction should issue in the shadow of a warrant, but whether nitrogen hypoxia, as actually found to operate, can stand under the Constitution.
II. The Door Grayson Left Open
The Eleventh Circuit had seen nitrogen before. In 2024, in Grayson v. Commissioner, it had affirmed the denial of a preliminary injunction to an Alabama inmate challenging the same protocol, holding that on the record then before it the district court had not abused its discretion.^4^ But Grayson had turned on findings that were, in the new panel's telling, crucially different. There the inmate's own expert had testified that the protocol inflicted only psychological pain---pain "which would exist regardless of the method of execution." There the district court had credited a state expert's estimate that unconsciousness arrives within ten to forty seconds. And there the court had rejected the claim that the protocol causes pulmonary edema.^5^ On those facts, the inmate lost.
Yet even while ruling against him, the Grayson panel had left a door ajar. It acknowledged that there "may exist a form of execution that induces psychological terror or pain that is severe enough to support an Eighth Amendment claim," and it expressly reserved judgment on "what the result would have been had the district court's factual findings been different."^6^ Two years later, after the first full trial in the country, the findings were different in every particular that had mattered. The inmate's experts were now credited rather than rejected. The suffering was found to last not forty seconds but one to three minutes. The pulmonary edema the Grayson court had set aside was now written into four autopsies. Jeffery Lee walked through the door Grayson had left open.
III. The Standard of Review
Everything then turned on a distinction that sounds technical and proved decisive. When a federal appeals court reviews a judgment entered after a bench trial, it does not retry the case. It reviews the trial judge's findings of fact only for "clear error"---a deferential standard under which a finding that is "plausible in light of the full record---even if another is equally or more so---must govern." The reviewing court may not overturn a finding "simply because we are convinced that we would have decided the case differently."^7^ But the legal conclusion built upon those facts---whether the method, as found, violates the Eighth Amendment---is reviewed without any deference at all, as "a question of law."^8^
This was the architecture that made Marks's candor fatal to the state. Both sides had attacked the findings. The Commissioner asked the panel to discard the finding that the protocol causes one to three minutes of air hunger; Lee asked it to find that consciousness lasts as long as three to seven minutes. The panel did neither. "We discern no clear error," it wrote, "in any of the district court's factual findings."^9^ A trial judge, it explained, is free to believe parts of an expert and disbelieve others and "frequently must choose between dueling experts"; Marks's choices were reasonable, and so they stood.^10^ The facts were locked. What remained was the law---and on the law the appellate court owed the trial court nothing.
IV. The Findings, Restated
Before reaching its conclusion, the panel did something telling: it reproduced Marks's findings at length, in her own words, as the foundation of the appeal. The opinion set out, point by point, what the district court had credited---that inmates "likely experience severe air hunger, which evokes distress and anxiety," a hunger that "triggers the body's 'extreme physiologic need to get more oxygen' and produces 'intense physiologic stress that causes intense suffering'"; that because the inmate cannot answer that need, a "'vicious cycle of increasing air hunger and panic symptoms' can occur"; and that air hunger is "a holistic discomfort sensation" which, "because it evokes a fear of dying," "can be worse than pain."^11^
It recited the autopsies---that all four executed inmates who had been examined showed flash pulmonary edema, "an abnormal autopsy finding" in which the lungs "almost instantaneously" fill with fluid, occurring "very early on in the executions" while the men were conscious and "when air hunger was occurring and reaching its peak."^12^ And it preserved the most damning finding of all: that the suffering could not be relieved. In a clinic or a laboratory, the court quoted, a frightened patient can be reassured; "in an execution setting, such reassurance is not possible because the goal is to cause the inmate's death."^13^ By laying the findings out in full, the panel made plain the ground on which it would rule. It was not substituting its own view of the science. It was taking Marks at her word.
V. Substantial Risk of Serious Harm
On the law, the panel reversed. It began where the Supreme Court's cases begin: the Eighth Amendment "does not demand the avoidance of all risk of pain in carrying out executions," and it does not license courts to act as "boards of inquiry charged with determining 'best practices' for executions." A method offends the Constitution only when its risk of pain is "substantial when compared to a known and available alternative."^14^ To prevail, a prisoner must clear two hurdles: he must show "a substantial risk of serious harm---severe pain over and above death itself," and he must identify a feasible alternative that would significantly reduce it. Judging the first, the Court has said, is "a necessarily comparative exercise"---the question whether a state has "cruelly 'superadded' pain" cannot be answered "in a vacuum."^15^ The first hurdle was the whole of this appeal.
Measured against the findings, the panel held, it was cleared. "The district court found that an inmate executed under the protocol suffers one to three minutes of 'severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort,'" the court wrote. "This mental distress, physiological suffering, and physical discomfort, the district court found, will likely take place. There is, in other words, a substantial risk of serious harm. The risk is not conjectural, speculative, or doubtful."^16^
Then the panel said the thing Marks would not. It conceded, as it had to, that the Eighth Amendment does not "guarantee a prisoner a painless death." But it added that at the Founding "cruel" was "often defined to mean . . . '[d]isposed to give pain to others, in body or mind.'"^17^ The very originalist source the district court had used to narrow the clause, the panel turned outward: a method disposed to give pain in body and mind is the thing the word was written to forbid. "In our view," the court concluded, "the overall suffering described by the district court, which lasts for one to three minutes, presents a substantial risk of serious harm over and above death itself. Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place under Alabama's nitrogen hypoxia protocol." The suffering, it held, "is over and above the mental distress that typically accompanies the knowledge of impending death by execution."^18^
In a single paragraph the court dismantled the load-bearing beam of Marks's opinion. She had reasoned that the anguish was constitutionally tolerable because it flowed from the prisoner's awareness that he was about to die---an "inescapable consequence of death" common to every execution. The panel answered that what the record described was something more: pain over and above that awareness, over and above death itself. The minutes were the proof. One to three minutes of severe air hunger is not the ordinary dread of the condemned. It is a harm the method adds---and adding it is what the Constitution forbids.
VI. Distinguishing Hoffman
The state's strongest precedent ran the other way, and the panel had to meet it. In Hoffman v. Westcott, a divided Fifth Circuit had vacated a preliminary injunction against Louisiana's nearly identical protocol, clearing the way for the execution of Jessie Hoffman in March 2025.^19^ If one federal appeals court had let nitrogen proceed, why should another forbid it?
Because, the panel explained, the records were not the same. In Hoffman, "the district court heard expert testimony from both parties that nitrogen hypoxia is painless," and the experts there "agreed that death by firing squad"---the alternative Hoffman had proposed---"would be more painful than execution by nitrogen hypoxia."^20^ The Alabama record was the opposite on both points. Marks had found that nitrogen causes "profound physiological discomfort and distress" through severe air hunger, and---pausing to parse the word against three dictionaries---the panel observed that "physiological distress is at least partly physical."^21^ Where the Louisiana trial had produced a finding of painlessness, the Alabama trial had produced a finding of physical pain. The divergence between the circuits was not a quarrel about the law. It was a difference in what two trials had found---which is to say, once more, that the findings were the case. A dissenting judge in Hoffman had said as much, faulting that majority for passing over the district court's findings of conscious terror and suffocation; the Eleventh Circuit, on its own record, would not repeat the omission.^22^
VII. The Remand and the Stay Denied
Having decided the first prong, the panel pointedly declined to decide the case. The governing test has two halves, and the second---whether Lee had identified "a feasible and readily implemented alternative" that would significantly reduce the risk---the district court had never reached, because its ruling on the first prong had made the second unnecessary.^23^ Lee asked the Eleventh Circuit to resolve the alternative itself and end the matter then and there. It declined. "As an appellate tribunal, it is not our 'role to find facts,'" the panel wrote, and the firing-squad question was thick with unresolved facts---the risk that a firing squad might fail, whether the need for volunteer marksmen drawn from the prison staff is a legitimate reason for the state to refuse it, and what pain, if any, the firing squad would itself inflict.^24^
So the court sent the case back "with instructions to immediately address the second prong of Glossip," and---because it could not yet say Lee was likely to prevail on that prong---it denied his motion for a stay of execution, without prejudice.^25^ The reversal, then, did not halt the execution. It established that nitrogen was likely unconstitutional and returned the open question to the trial court, with the warrant still live and the clock still running toward June 11.
The urgency shaped even the form of the opinion. The panel marked it "not for publication," and a footnote explained the reason. Under the circuit's rules, the mandate of a published opinion cannot be expedited without notice to the full court, and there was no time for that. By leaving the opinion unpublished, the panel could order the clerk to issue the mandate immediately---"along with the filing of this opinion"---so that the district court would "reacquire jurisdiction right away."^26^ The designation that limits a ruling's precedential weight was, here, not a judgment about the case's importance. It was a device for speed.
VIII. What the Reversal Did and Did Not Do
It is worth being exact about what the Eleventh Circuit had and had not done, because the distinction is the spine of everything that followed. It had not freed Jeffery Lee. It had not enjoined his execution. It had not held that he would ultimately win. What it had done was convert a finding into a holding. Marks had found, as a matter of fact, that the gas inflicts one to three minutes of severe air hunger; the panel held, as a matter of law, that one to three minutes of severe air hunger is a substantial risk of serious harm---severe pain over and above death itself. The first prong of the constitutional test, which no nitrogen challenger had ever cleared on a full record, was satisfied. The protocol that had killed seven men in Alabama and one in Louisiana was now, for the first time, an officially likely-unconstitutional method.
And the case returned to the one judge who had already studied this suffering twice and twice allowed it. Only a single question was left for her---the firing squad, the feasible alternative, the second prong of the test. It was the precise question on which Anthony Boyd had lost his life, the question around which Marks had built her Boyd opinion. This time the appellate court had removed all doubt about the first prong and ordered her to take up the second "immediately." The execution window opened on June 11.
She answered in a day.
Endnotes
1. Lee v. Comm'r, Ala. Dep't of Corr., No. 26-11864, slip op. at 3 (11th Cir. June 8, 2026) (per curiam) (designated Not for Publication) (quoting Nance v. Ward, 597 U.S. 159, 164 (2022), in turn quoting Glossip v. Gross, 576 U.S. 863, 877 (2015)).
2. Ibid, 4. The panel expedited briefing and heard oral argument by videoconference on June 5, 2026. The appeal arose from Lee v. Lovelace, No. 2:25-cv-00680-ECM (M.D. Ala.).
3. Ibid, 1--2 (citing Ala. Code §§ 15-18-82(a), 15-18-82.1(a)--(b), and observing that Arkansas, Louisiana, Mississippi and Oklahoma also authorize nitrogen hypoxia). At the time of the ruling, only Alabama and Louisiana had carried out nitrogen executions.
4. Ibid, 2 (citing Grayson v. Comm'r, Ala. Dep't of Corr., 121 F.4th 894, 898--900 (11th Cir. 2024)).
5. Ibid (summarizing the findings credited in Grayson: psychological pain that "would exist regardless of the method of execution"; unconsciousness within ten to forty seconds; and rejection of the negative-pressure-pulmonary-edema theory).
6. Ibid (quoting Grayson, 121 F.4th at 900 n.3, 901 n.4).
7. Ibid, 12 (quoting Cooper v. Harris, 581 U.S. 285, 293 (2017), and Glossip, 576 U.S. at 881); see Dish Network, LLC v. Fraifer, 171 F.4th 1344, 1351 (11th Cir. 2026) (standard of review).
8. Ibid, 13 (quoting Grayson v. Warden, Comm'r, Ala. Dep't of Corr., 869 F.3d 1204, 1239 (11th Cir. 2017)).
9. Ibid, 15.
10. Ibid (quoting United States v. Stein, 964 F.3d 1313, 1322 (11th Cir. 2020), and Rixey v. W. Paces Ferry Hosp., Inc., 916 F.2d 608, 616 (11th Cir. 1990)).
11. Ibid, 8--9 (reproducing the district court's credited findings, quoting Lee v. Lovelace, 2026 WL 1493098, at *14--*15 (M.D. Ala. May 28, 2026)).
12. Ibid, 9 (quoting Lee v. Lovelace, 2026 WL 1493098, at *15).
13. Ibid, 10 (quoting Lee v. Lovelace, 2026 WL 1493098, at *25).
14. Ibid, 13 (quoting Bucklew v. Precythe, 587 U.S. 119, 134 (2019)).
15. Ibid, 13--14 (quoting Nance, 597 U.S. at 164, and Bucklew, 587 U.S. at 136).
16. Ibid, 16 (quoting Lee v. Lovelace, 2026 WL 1493098, at *25).
17. Ibid, 16--17 (quoting Bucklew, 587 U.S. at 130, 132, in turn quoting 1 Noah Webster, An American Dictionary of the English Language (1828)).
18. Ibid, 17.
19. Ibid (citing Hoffman v. Westcott, 131 F.4th 332 (5th Cir. 2025)).
20. Ibid, 18 (quoting Hoffman, 131 F.4th at 336).
21. Ibid (quoting Lee v. Lovelace, 2026 WL 1493098, at *22, and consulting dictionary definitions of "physiological").
22. Ibid, 18 n.5 (discussing Hoffman, 131 F.4th at 337 (Haynes, J., dissenting)).
23. Ibid, 12, 19 (quoting Nance, 597 U.S. at 164).
24. Ibid, 19--20 (quoting United States v. Barnette, 10 F.3d 1553, 1558 (11th Cir. 1994)).
25. Ibid, 20.
26. Ibid, 21 & n.6 (citing 11th Cir. R. 41-2).
9.2: The Injunction: The First Permanent Ban on a Method of Execution
The Eleventh Circuit had given Chief Judge Emily C. Marks one instruction and almost no time. Decide the firing squad. Decide it immediately. The execution window opened in three days. On June 9, 2026---the day after the reversal---she issued a twenty-six-page opinion and did what no federal judge in the country had ever done after a full trial. She held that a state's chosen method of execution is cruel and unusual, and she permanently barred Alabama from using it. The judge who had twice looked at nitrogen hypoxia and allowed it became the first to forbid it.^1^
I. The Question on Remand
Nothing about Marks's framework had changed; only the question in front of her had. The Eleventh Circuit had resolved the first prong of the constitutional test and sent the case back with a single task: to determine "whether Mr. Lee has demonstrated that the firing squad is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduce[s] the risk of harm posed by nitrogen hypoxia."^2^ It was the second prong of Glossip---the prong Marks had never reached in her trial ruling, because her conclusion on the first had made it unnecessary, and the same prong on which Anthony Boyd had lost his life eight months earlier.
The clock was unforgiving. The Governor had set Lee's execution for the evening of June 11, and the appellate mandate had issued the instant the reversal was filed, returning jurisdiction to the district court at once.^3^ Marks ruled in roughly a day. The speed is worth pausing on: the question she answered---whether a firing squad is a constitutionally adequate alternative to gas---had never before decided an American execution, and she answered it under a deadline measured in hours.
II. The Blueprint
Lee had come to court, as the doctrine requires, with a blueprint. His proposed alternative was execution by firing squad, modeled closely on Utah's established procedure.^4^ The evidence for it had been laid down at the April trial, principally through Dr. James Williams, who had testified that a firing squad of trained marksmen firing at the heart would render a person unconscious within three to five seconds---before the brain could process pain---because the resulting cessation of blood flow produces a far deeper and faster unconsciousness than oxygen deprivation.^5^
Marks credited that testimony. She found that the firing squad would produce "a quick and painless death," and that the state had offered "no admissible evidence to the contrary."^6^ The comparison did the work. She had already found that nitrogen inflicts one to three minutes of severe, conscious air hunger; against that, a death rendered insensible in three to five seconds was not a marginal improvement but a categorical one. The firing squad is not painless in any absolute sense---bullets break the body---but the constitutional question was never whether the alternative is pleasant. It was whether the alternative significantly reduces the risk the chosen method imposes. Three to five seconds against one to three minutes answered it. The firing squad, she held, "is feasible, readily implemented, and significantly reduces the substantial risk of serious harm posed by the Protocol."^7^ That is the precise language of the second prong, and Lee had met it.
III. No Legitimate Penological Reason
The state's defense was practical, not principled. Alabama argued that a firing squad is not currently authorized under its law, and that adopting one would force the department to write a new protocol, build or modify a facility, obtain rifles and ammunition, and recruit volunteers willing to shoot---objections of logistics and will.^8^ The attorney general warned of the difficulty of finding marksmen and the possibility that a shot might miss.^9^
Marks rejected the defense, and she did so largely on the state's own evidence. The Supreme Court, she noted, has held that an inmate "is not limited to choosing among those [methods] presently authorized" by his state, so the absence of a firing-squad statute was no answer.^10^ As for feasibility, the state's own officials supplied the proof against it: former Commissioner John Q. Hamm and Deputy Commissioner Charles Williams testified that the department could obtain the rifles and ammunition, train the personnel, and modify the space at Holman Correctional Facility if a firing squad were authorized.^11^ There was an irony in the state's timing argument that the record made plain. Alabama had taken roughly five years to bring nitrogen hypoxia from authorization to its first use, and now it invoked the very time a firing squad would take as the reason it could not be done. The Constitution does not let a state convert its own administrative pace into a license to inflict the crueler death. On that record the court found what the Eighth Amendment's comparative test demands---that the state "has failed to articulate a legitimate penological reason for refusing to adopt Lee's proposed alternative."^12^ Reluctance is not a reason. Inconvenience is not a reason. The state had offered nothing the Constitution would recognize as one.
IV. Cruel and Unusual
With both prongs satisfied, the conclusion followed of necessity. "Lee has shown by a preponderance of the evidence," Marks wrote, "that his proposed firing squad alternative is feasible, readily implemented, and significantly reduces the substantial risk of serious harm posed by the Protocol." The first prong, settled by the Eleventh Circuit, supplied the substantial risk; the second now supplied the available alternative the state had refused without justification. "The ADOC's nitrogen hypoxia execution protocol," she held flatly, "violates the Eighth Amendment."^13^
It was, by every account, the first ruling of its kind. Other courts had granted preliminary injunctions, predicting that a challenge might succeed; the Fifth Circuit had vacated one such injunction in Louisiana; the Supreme Court had never struck down a method at all. What Marks entered on June 9 was not a prediction but a judgment---a final, merits determination, after a full trial, that a particular method of execution is unconstitutional even under the Supreme Court's demanding modern doctrine---a doctrine the Court had assembled, over Baze, Glossip and Bucklew, almost entirely to the disadvantage of the condemned, and that no method-of-execution challenger had ever satisfied on a full trial record. One scholar called it the first time in modern history that a method of execution had been held unconstitutional; a landmark.^14^ The instrument that delivered the judgment was a permanent injunction---the first ever entered against a nitrogen hypoxia protocol.
V. "No More, No Less"
Marks was careful about what she had and had not done, and the care is part of the record's meaning. The injunction did not vacate Lee's death sentence. It did not bar Alabama from executing him by some other lawful means; the state's authority to carry out the sentence by lethal injection or electrocution was untouched.^15^ "The result," she wrote, "is that the State of Alabama cannot execute Lee by nitrogen hypoxia---no more, no less."^16^
And she closed, as she had in the trial ruling, by refusing to pretend the law was painless. "The Constitution does not guarantee a painless death," she wrote, "and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality."^17^ It was the same candor that had marked her May 28 opinion---the same refusal to look away from what executions are---turned now to the opposite end. In May the honesty had accompanied a permission. In June the same honesty accompanied a prohibition. Nothing in the judge had changed. The record had changed, and the record was the case. There is no clearer illustration in all of this litigation of how little the outcome ever turned on sympathy or persuasion. Marks did not come to pity Jeffery Lee in the eleven days between her two opinions. She came to be bound---by an appellate holding she could not revisit, and by a proven alternative the state could not refute.
VI. The Stay Denied
Alabama appealed within hours and asked the Eleventh Circuit to stay the injunction so the execution could proceed on schedule.^18^ The same court that had reversed Marks two days earlier now reviewed her injunction---this time under the deferential standard that governs a final equitable judgment---and refused to disturb it. The panel denied the stay and described nitrogen asphyxiation, in so many words, as "a likely-unconstitutional method."^19^
But the panel was no longer unanimous. Judge Luck, who had joined the June 8 opinion holding that nitrogen poses a substantial risk of serious harm, dissented from the refusal to stay. He would have let the execution go forward. The firing squad, in his view, was not "readily implemented": Alabama would have to build the program "from scratch" and test it, a process that had taken five years when the state adopted nitrogen.^20^ And he returned to the ground the state had pressed from the beginning---that for as long as there had been an Eighth Amendment, the Supreme Court had never held a state's method of execution to be cruel and unusual, and a lower court should not be the first to say so.^21^ It was a revealing split. The judge who agreed that the gas inflicts a substantial risk of serious harm would nonetheless have permitted the man to be gassed. He credited the suffering and would have allowed it.
Alabama would not let the matter rest there. Within hours of the stay's denial the state carried its case to the Supreme Court, asking the Justices to vacate the injunction and clear the way for the execution set for the evening of June 11.^22^ It was the same Court that, time and again, had cleared such obstacles before. Alabama had one night left to learn whether it would do so once more.
Endnotes
1. Lee v. Lovelace, No. 2:25-cv-00680-ECM, 2026 WL 1664095 (M.D. Ala. June 9, 2026) (DE 187) (permanent injunction). The opinion issued the day after the Eleventh Circuit's reversal and was the first permanent injunction entered against a nitrogen hypoxia protocol, and the first final, merits ruling that a method of execution violates the Eighth Amendment.
2. Lee v. Comm'r, Ala. Dep't of Corr., No. 26-11864, slip op. at 21 (11th Cir. June 8, 2026) (per curiam) (remanding with instructions to address the second prong of Glossip).
3. Ibid (ordering the clerk to issue the mandate immediately so that the district court would "reacquire jurisdiction right away"). The Governor had set the execution for a thirty-hour window opening at 12:00 a.m. on June 11, 2026, with the execution itself scheduled for 6:00 p.m. that day.
4. Lee v. Lovelace, No. 2:25-cv-00680-ECM, DE 187 at 8--9 (M.D. Ala. June 9, 2026) (describing Lee's firing-squad "blueprint" as largely tracking Utah's protocol).
5. Ibid at 4--5 (crediting Dr. James Williams's testimony that the firing squad causes "a quick and painless death" and is "feasible and readily implemented"); see Trial Tr. (Apr. 28, 2026), DE 147, at 31:18--32:10 (three-to-five-seconds-to-unconsciousness testimony).
6. Ibid at 15, 23 (finding Dr. Williams's testimony "credible, persuasive evidence that an inmate executed by [Mr.] Lee's proposed firing squad protocol would experience no pain," and that the alternative "produces a quick and painless death"; the State "offered no admissible evidence to the contrary").
7. Ibid at 24 ("Lee has shown by a preponderance of the evidence that his proposed firing squad alternative is feasible, readily implemented, and significantly reduces the substantial risk of serious harm posed by" the Protocol).
8. Ibid at 10, 16--17 (summarizing the State's objections that a firing squad is not authorized under Alabama law and would require a new protocol, facility modifications, materials, and volunteers).
9. Statement of Alabama Attorney General Steve Marshall (June 2026) (raising the difficulty of sourcing willing marksmen and the risk of a missed shot).
10. DE 187 at 10 (quoting Bucklew v. Precythe, 587 U.S. 119, 139--40 (2019)); see Nance v. Ward, 597 U.S. 159, 164 (2022).
11. Ibid at 11, 16--17 (crediting the testimony of the State's own witnesses, former Commissioner John Q. Hamm and Deputy Commissioner Charles Williams, that the ADOC could obtain rifles and ammunition, train personnel, and modify space at Holman if a firing squad were authorized; the record reflected that Alabama took roughly five years to bring nitrogen hypoxia from authorization to first use).
12. Ibid at 24 (the State "failed to articulate a legitimate penological reason for refusing to adopt Lee's proposed alternative").
13. Ibid (the ADOC's "nitrogen hypoxia execution protocol violates the Eighth Amendment").
14. Bernard Harcourt, quoted in press coverage of the ruling (June 2026) (describing it as the first time in modern history that a method of execution had been held unconstitutional); see also Steve Vladeck, Why Did the Court Deny Lovelace v. Lee?, One First (June 2026) (the first conclusive merits decision that a method of execution is unconstitutional under current doctrine).
15. DE 187 (the injunction does not overturn Lee's death sentence and does not bar execution by lethal injection or electrocution under Alabama law).
16. Ibid ("The result is that the State of Alabama cannot execute Lee by nitrogen hypoxia---no more, no less.").
17. Ibid ("The Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality.").
18. Notice of Appeal and Emergency Motion to Stay, Lee v. Comm'r, Ala. Dep't of Corr., No. 26-12027 (11th Cir. June 9--10, 2026).
19. Lee v. Comm'r, Ala. Dep't of Corr., No. 26-12027, order at 20 (11th Cir. June 10, 2026) (per curiam) (denying the State's emergency motion to stay the injunction; describing nitrogen as "a likely-unconstitutional method"). The court reviewed the permanent injunction for abuse of discretion. See Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1221 (11th Cir. 2017).
20. Ibid at 22--23 (Luck, J., dissenting) (concluding that the firing squad was not "readily implemented" because Alabama would have to build the program "from scratch" and test it, a process that took five years when the State adopted nitrogen hypoxia).
21. Ibid at 29 (Luck, J., dissenting) (observing that "[f]or as long as we've had an Eighth Amendment, the Supreme Court has never held that a state's method of execution qualifies as cruel and unusual," and concluding that he would grant the stay).
22. Application to Vacate the Injunction, Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026); the execution was scheduled for 6:00 p.m. CDT on June 11, 2026, and Lee's would have been the ninth nitrogen execution nationally and the eighth in Alabama. The Supreme Court proceedings are treated in the chapter that follows.
9.3: The Supreme Court: Why the Court Did Not Rescue Alabama
By the evening of June 11, 2026, the law that mattered most to Jeffery Lee was no longer the Eighth Amendment. It was the practice of a single court. For more than a decade the Supreme Court of the United States had made its emergency docket the place where executions were saved---saved, most often, from the very courts that tried to stop them. When a federal judge stood between a state and its machinery of death, the Justices had shown a steady willingness to step in and clear the way. Alabama filed its application expecting exactly that. It did not come.^1^
I. What the Court Usually Does
The expectation was not unreasonable. It rested on a pattern the Court had built in plain view. Through a swelling body of unsigned, unargued emergency orders---what scholars have come to call the shadow docket---the Court had repeatedly intervened in capital cases, most often to lift a lower court's stay and let an execution proceed on schedule.^2^ In 2019 it had instructed the lower courts that "[l]ast-minute stays should be the extreme exception, not the norm."^3^ The next year it put the instruction into practice, vacating a stay to permit the first federal execution in seventeen years; thirteen more federal executions followed within months, several of them cleared by the Court in the hours after midnight.^4^
That is the backdrop against which Alabama's request must be read. The state was not asking for something the Court had been reluctant to give. It was asking for the thing the Court had given, again and again, to other states and to the federal government: the removal of a last obstacle between a sentence and its execution. By the ordinary run of the emergency docket, Alabama had every reason to expect a rescue.
II. Why This Was Different
What it had not reckoned with was the posture of the case. Almost every emergency execution order of the modern era has arisen from a preliminary ruling---a stay or a preliminary injunction entered early, before trial, while the merits are still unsettled. Relief in that setting is genuinely interim; it holds matters in place until a court can decide. Lee's case was the opposite. Chief Judge Marks had held a full trial, made findings of fact, and entered a permanent injunction---a final judgment on the merits---which the Eleventh Circuit had then declined to disturb under deferential review.^5^ To grant Alabama's application was not to pause anything. It was to set aside a final judgment, on a developed factual record, in a single night, on no briefing but the emergency papers. That is something close to summary reversal, and the Court does not do it lightly.
There was a deeper problem still, and it ran to the Court's own power. Had the Justices vacated the injunction and had Alabama then carried out the execution, the case would have become moot. There would be no live controversy left to hear in the ordinary course---no plenary review, no signed opinion, ever. In granting the state's wish the Court would have extinguished its own jurisdiction over one of the most consequential execution-method rulings in its history. A permanent injunction made permanent only by the execution it was entered to prevent is a judgment no court can ever review.^6^ The state replied that the same could be said of any execution stay, and that the equities still favored letting the sentence be carried out.^7^ The reply did not persuade a majority.
III. The Doctrine the Court Built
It may be that the posture alone explains the result---that the Court declines, as a matter of practice, to unwind final judgments on the emergency docket, and needed no further reason. But the procedural objections, real as they were, may not be the whole of it. The most resonant explanation for the Court's restraint lies in the doctrine the Court itself had made.
For two decades the Justices had constructed the modern law of execution methods almost entirely to the disadvantage of the condemned. Baze announced that a method is cruel only where it poses a substantial, objectively intolerable risk of serious harm. Glossip hardened that into a pleading burden and added the demand that a prisoner identify a known, available, feasible alternative that significantly reduces the risk. Bucklew made the comparison the heart of the case.^8^ Together the cases built a test so exacting that no challenger had ever satisfied it on a full record. The scaffold was understood, by supporters and critics alike, to make method-of-execution claims nearly impossible to win.
And then one was won. Jeffery Lee did not ask the courts to abandon that framework. He used it. He met the first prong with the trial court's own findings of severe air hunger, and he met the second with a firing squad the state could not honestly refuse. He satisfied the very test the Court had built to be unsatisfiable.
That is what made the application so awkward to grant. To vacate the injunction, the Court would have had to hold, in effect, that a prisoner who clears every hurdle of Glossip still loses---that the test is not a test but a formality, a door painted on a wall. A Court with any stake in the legitimacy of its own doctrine had reason to let the rare winner keep his victory, rather than teach the next prisoner, and the country, that the standard was never meant to be met. None of this appears in any opinion, because there was no opinion. It is inference. But it is the inference that best fits a Court that spent twenty years insisting these claims could succeed and then, when one finally did, declined to say it could not.
IV. The Silence
Three Justices would have granted the application. Justices Thomas, Alito and Gorsuch---among the Court's most reliable votes against last-minute relief for the condemned---recorded that they would have vacated the injunction and allowed the execution to proceed. They wrote nothing to explain why. Neither did the six who turned Alabama away.^9^
The denial was therefore not an endorsement. The Court did not hold that nitrogen hypoxia is unconstitutional. It did not bless Marks's reasoning or the Eleventh Circuit's. It did not say a word. A district judge in Montgomery had found a method of execution cruel and unusual, an appeals court had let her findings stand, and the Supreme Court simply declined to intervene. By doing nothing, it did the one thing that would let the judgment live: it allowed the first verdict in American history against a method of execution to take effect.
For a Court that had spent a decade making these claims hard to bring and easy to moot, the decision to hold its hand---this once, on this record---was itself the ruling. It is the rare case in which the most important thing the Supreme Court did was nothing at all. Alabama had asked to be rescued from a judgment it found intolerable. The Court, for reasons it chose not to give, let the judgment stand.^10^
V. What Held
It is important to be clear, at the end, about what survived and what did not. Jeffery Lee was not freed; his death sentence stood. Alabama retained the power to seek his execution by other means. What had been extinguished was a single method---the method the state had used to kill seven men in its own chambers and that Louisiana had used to kill one more, the method that had spread to five states on the strength of a promise that it was humane.
The promise did not survive contact with a full record. Once a court was made to sit with the evidence---the autopsies, the air hunger worse than pain, the minutes that could not be relieved---and once a prisoner came forward with a faster, lesser death the state could not honestly refuse, the framework that had protected nitrogen for two years turned and condemned it. It came too late for Kenneth Smith and the six who followed him in Alabama, and too late for Jessie Hoffman in Louisiana. It came in time for Jeffery Lee.
What the Lee litigation established is narrow in form and vast in implication. As a matter of binding judgment, it forbids one method against one man. As a matter of demonstrated fact---findings made by a trial court, accepted by an appellate court, and left standing by the Supreme Court---it holds that the newest execution method in America inflicts a substantial risk of serious harm, severe pain over and above death itself, and that a less cruel alternative is feasible and available. Nitrogen hypoxia entered the country as the future of humane execution. It leaves this record a likely-unconstitutional method, mortally wounded by the first court ever required to look closely at what it does.
Endnotes
1. Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026) (mem.) (denying Alabama's application to vacate the permanent injunction).
2. On the Court's emergency or "shadow" docket and its recurring use in capital cases, see Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023).
3. Barr v. Lee, 591 U.S. ___, ___ (2020) (per curiam) (slip op., at 4) (quoting Bucklew v. Precythe, 587 U.S. 119 (2019)) ("'Last-minute stays' . . . 'should be the extreme exception, not the norm.'").
4. Barr v. Lee, 591 U.S. ___ (2020) (per curiam) (vacating a stay to permit the first federal execution in seventeen years). Thirteen federal executions were carried out between July 2020 and January 2021.
5. Lee v. Lovelace, 2026 WL 1664095 (M.D. Ala. June 9, 2026), stay denied, No. 26-12027 (11th Cir. June 10, 2026) (mem.).
6. See Brief of Amicus Curiae Stephen I. Vladeck, Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026) (arguing that vacating a permanent injunction---a final merits judgment---would amount to summary reversal and, by permitting the execution, would moot the case and deprive the Court of plenary review).
7. Reply in Support of Application to Vacate, Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026) (contending that mootness attends every execution stay and that the equities favored the State); see Barr v. Lee, 591 U.S. ___ (2020).
8. Baze v. Rees, 553 U.S. 35 (2008); Glossip v. Gross, 576 U.S. 863, 877 (2015); Bucklew v. Precythe, 587 U.S. 119, 134--37 (2019); see also Nance v. Ward, 597 U.S. 159 (2022).
9. Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026) (mem.) (Justices Thomas, Alito and Gorsuch would have granted the application). No opinion accompanied the order.
10. Steve Vladeck, Why Did the Court Deny Lovelace v. Lee?, One First (June 2026) (canvassing the procedural and doctrinal explanations for the denial).
9.4: Judicial Approaches in the Lee Litigation: A Comparative Analysis of the Nitrogen Judges
The judges who have confronted nitrogen hypoxia did not speak with one voice, and the disagreement among them is part of the method's story. From the first execution in 2024 to the injunction of 2026, their opinions traced a single long argument about whether a death by suffocation can be reconciled with the Eighth Amendment. This chapter gathers those voices in one place---trial judges and appellate judges, majorities and dissents---and sets their statements and conclusions side by side. What emerges is not a collection of unrelated rulings but a spectrum that ran, for two years, from deference at one end to the lived reality of the condemned at the other, and that the Lee litigation finally forced to a resolution.
The earliest judicial word belonged to Judge R. Austin Huffaker Jr., and it was a word of restraint. Facing the first nitrogen execution ever attempted, in Smith v. Hamm, Huffaker treated the prisoner's warnings of convulsions, mask failure and prolonged consciousness as speculation---a "cascade of highly unlikely events" that did not establish a substantial risk of severe pain.^1^ He conceded that the death might not be painless but held that the Eighth Amendment does not promise one: "Smith is not guaranteed a painless death."^2^ His opinion set the template the state would rely on for two years---that a protocol supported by a rational, evidence-based account is constitutional, and that the untested quality of a novel method counts in the state's favor rather than against it.
Against that restraint, Judge Jill Pryor's dissent in the same case spoke for the body on the gurney. Pryor traced the likely physiological course of Smith's execution in detail, dwelling on the interaction between oxygen deprivation and his post-traumatic stress, and warned that vomiting, suffocation and sensory panic could combine into "superadded pain" the Constitution forbids.^3^ Where Huffaker saw speculation, Pryor saw a foreseeable ordeal the state had chosen not to prevent. Hers was the first judicial articulation of what later witnesses would confirm, and it became the seed of nearly every argument that followed.
In Louisiana, Chief Judge Shelly D. Dick translated that concern into action. Presiding over the Hoffman challenge, Dick issued a preliminary injunction against the state's nitrogen protocol, crediting eyewitness testimony from the Alabama executions and faulting Louisiana for disclosing its procedures so late.^4^ She treated psychological terror and visible distress as central to the Eighth Amendment question rather than peripheral to it, and she was willing to halt an execution to keep that question from being answered by the execution itself. Her injunction would not survive the Fifth Circuit, but it proved that a court could intervene.
Between these poles, Chief Judge Emily C. Marks staked out the middle ground that would define the method's second year. In Boyd v. Hamm, Marks acknowledged that nitrogen hypoxia could induce discomfort and panic, but she characterized that suffering as an "inescapable consequence of death" rather than a superadded cruelty, and she insisted that an inmate who would challenge the method must come forward with a feasible, less painful alternative.^5^ Absent such a showing, the protocol stood. Marks's approach honored the human reality the deference camp preferred to ignore while still placing the outcome where the state wanted it---a balance that would prove, in her own later hands, unstable.
From the Supreme Court, Justice Sonia Sotomayor supplied the most expansive answer of the period, though only in dissent. Dissenting from the denial of relief in Boyd, she drew on eyewitness accounts and scientific testimony to argue that nitrogen hypoxia imposes prolonged conscious suffering---pain both physical and psychological, "superadded" to the death itself---and she warned against normalizing an experimental method through repetition rather than scrutiny.^6^ Sotomayor joined Pryor's empathy to a systemic worry about the Court's own role, but she joined it from the losing side of the docket.
For two years this was the settled shape of the disagreement. The deference of Huffaker and the early Marks governed the outcomes; the empathy of Pryor, Dick and Sotomayor governed only the dissents and the injunctions that higher courts dissolved. Every judge had spoken, but none had been required to decide the question on a full evidentiary record. The Lee litigation supplied what had been missing---a trial---and with it the spectrum that had held for two years collapsed into a result. Within thirty days the same protocol was judged by the same trial judge twice, by a circuit panel that accepted her facts and rejected her law, by one member of that panel who broke from it, and by a Supreme Court that said nothing at all.
When the Lee case reached her, Marks ruled first, and at first she ruled as she had in Boyd. Her May 28 opinion is remarkable less for its conclusion than for its candor. She did not minimize what the trial had shown. She found that nitrogen hypoxia inflicts "one to three minutes" of "severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort," a sensation that "can be worse than pain" and that cannot be relieved "because the goal is to cause the inmate's death."^7^ And then she upheld it. The suffering, she reasoned, was the distress that accompanies the knowledge of impending death---an inescapable consequence common to every execution---and Lee had not, on her reading of the second prong, proven a feasible alternative.^8^
Twelve days later the same judge reached the opposite conclusion, and the contrast is the most instructive comparison in the entire record. Nothing about the facts had changed. What changed was the question put to her. The Eleventh Circuit had taken the first prong out of her hands and ordered her to decide only the second---whether the firing squad Lee proposed was feasible and would significantly reduce the risk. On June 9 she held that it was and that it would, and she entered the first permanent injunction in American history against a method of execution. "The ADOC's nitrogen hypoxia execution protocol," she wrote, "violates the Eighth Amendment."^9^ The judge who had three times permitted the method---in Boyd, and twice in the abstract---authored its prohibition. Read together, her opinions show that her conclusions were never driven by sympathy or its absence. They were driven by the question she was asked and the holding she was bound to follow.
Between her two Lee opinions stood the court that forced the second. The Eleventh Circuit panel---Judges Jordan, Luck and Kidd, writing per curiam---did something the earlier appellate voices in this book never had the occasion to do. It accepted a trial court's findings of nitrogen's cruelty in full and then held, as a matter of law, that those findings compelled the opposite result. The panel did not call Marks wrong about the science. It called her wrong about the Constitution. "Counting to 60 or 180 seconds is not a quick exercise," it wrote, "and constitutionally speaking, that timeframe is intolerable." The suffering was "over and above the mental distress that typically accompanies the knowledge of impending death."^10^ Where Pryor and Sotomayor had described such suffering in dissent, the Lee panel described it in a holding. The vocabulary of the dissents had become the vocabulary of the judgment.
The most revealing figure in the litigation is Judge Robert Luck, because he appears on both sides of the line. Luck joined the June 8 panel that found nitrogen poses a substantial risk of serious harm. He agreed, in other words, that the method is cruel. Yet two days later, when Alabama asked the court to stay the injunction so the execution could proceed, Luck dissented and would have let it go forward.^11^ His reasoning was not that the suffering was tolerable---he had already voted that it was not---but that the firing squad was not "readily implemented," that Alabama would have to build the program "from scratch," and that for as long as there had been an Eighth Amendment no court had ever held a state's method of execution to be cruel and unusual.^12^ Luck is the purest distillation of the deference philosophy this book has tracked from Huffaker forward. He credited the harm and would have permitted the man to suffer it anyway. His position marks the exact point where deference, having lost the argument about the facts, retreats to the argument about novelty---not that the method is humane, but that no court should be the first to say it is not.
The majority that turned Luck down completed the reversal of the book's earlier pattern. Reviewing Marks's injunction under the deferential standard owed a final judgment, the panel declined to disturb it and called nitrogen asphyxiation, in plain words, "a likely-unconstitutional method."^13^ Deference, which for two years had run in the state's favor, now ran in the prisoner's. The same instinct to respect a lower court's judgment that had once shielded Alabama's protocols now shielded the injunction against them.
The last word belonged to the Supreme Court, and it was silence. The Court denied Alabama's application to vacate the injunction without a single line of explanation. Justices Thomas, Alito and Gorsuch recorded that they would have granted it and allowed the execution; they wrote nothing more.^14^ Where Sotomayor's Boyd dissent had spoken at length about the cruelty of the method, the Court that let the Lee injunction stand spoke not at all. Its restraint was not endorsement. It was the narrowest possible act---declining to intervene---and it left the first judicial verdict against a method of execution exactly where the lower courts had placed it.
Set end to end, these opinions tell a single story in two acts. In the first, which ran from Smith through Boyd, the judges divided into a stable spectrum: Huffaker and the early Marks deferring to the state's expertise and to the burdens it placed on inmates; Pryor, Dick and Sotomayor insisting on the lived reality of suffocation; and that empathy confined, for the whole period, to dissents and dissolved injunctions. In the second act, the Lee litigation, the same philosophies met a full trial record and the outcomes inverted. The empathetic reading prevailed for the first time as a holding---Marks's findings, the Eleventh Circuit's "intolerable," the permanent injunction---sustained on appeal and left undisturbed by the Supreme Court. The deferential reading did not vanish. It survives in Luck's dissent and in the three Justices who would have let the execution proceed. But it survives in a diminished form. Stripped of any claim that the method is humane---a claim the trial record destroyed---deference now rests on a single proposition: that no court should be the first to forbid what a legislature has authorized. That is the argument of a position that has lost everything except its reluctance. The judges who confronted nitrogen hypoxia never agreed about it. What changed, in the end, was not their disagreement but which of them the law was finally made to follow.
Endnotes
1. Smith v. Hamm, 2024 WL 262867, at *2 (M.D. Ala. Jan. 10, 2024) (finding the alleged risk of asphyxiation "overly speculative" because it required "a cascade of unlikely events").
2. Ibid (holding that the risk did not establish "the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," and that "Smith is not guaranteed a painless death") (quoting Baze v. Rees, 553 U.S. 35, 50 (2008)).
3. Smith v. Hamm, No. 23-13581, ___ F.4th ___ (11th Cir. Jan. 24, 2024) (Pryor, J., dissenting); see also Smith v. Hamm, 601 U.S. ___ (2024) (Sotomayor, J., dissenting from denial of application for stay) (tracing the risk of "superadd[ed]" pain, persistent vegetative state, stroke, or suffocation).
4. Hoffman v. Westcott, No. 25-169-SDD-SDJ, 2025 WL 763945, at *10--*12 (M.D. La. Mar. 11, 2025) (Dick, C.J.) (finding nitrogen hypoxia carried a substantial risk of superadding pain and suffering, that the protocol likely violated the Eighth Amendment, and that firing squad was a reasonable alternative; enjoining the execution "until the matter can be resolved at a trial on the merits"), vacated, 131 F.4th 332 (5th Cir. 2025).
5. Boyd v. Hamm, 2025 WL 2884410, at *20--*21 (M.D. Ala. Oct. 9, 2025) (Marks, C.J.) (characterizing the suffering as an "inescapable consequence of death" and requiring the inmate to identify a feasible, less painful alternative).
6. Boyd v. Hamm, 606 U.S. ___ (2025) (Sotomayor, J., joined by Kagan and Jackson, JJ., dissenting from denial of application for stay) ("Allowing the nitrogen hypoxia experiment to continue despite mounting and unbroken evidence that it violates the Constitution by inflicting unnecessary suffering fails to 'protect the dignity' of the Nation").
7. Lee v. Lovelace, No. 2:25-cv-00680-ECM, 2026 WL 1493098, at *14--*15, *25 (M.D. Ala. May 28, 2026) (Marks, C.J.) (DE 176).
8. Ibid, at *22--*25; see Boyd v. Hamm, No. 2:25-cv-00529-ECM (M.D. Ala. Oct. 9, 2025) (Marks, C.J.) (the "inescapable consequence of death" framing).
9. Lee v. Lovelace, No. 2:25-cv-00680-ECM, 2026 WL 1664095 (M.D. Ala. June 9, 2026) (Marks, C.J.) (DE 187 at 24).
10. Lee v. Comm'r, Ala. Dep't of Corr., No. 26-11864, slip op. at 16--17 (11th Cir. June 8, 2026) (per curiam).
11. Lee v. Comm'r, Ala. Dep't of Corr., No. 26-12027 (11th Cir. June 10, 2026) (mem.) (Luck, J., dissenting).
12. Ibid.
13. Ibid, order at 20 (majority) (denying the State's motion to stay the injunction).
14. Lovelace v. Lee, No. 25A1381 (U.S. June 11, 2026) (mem.) (Thomas, Alito and Gorsuch, JJ., would have granted the application). No opinion accompanied the order.