13.0: Appendix. The Week Nitrogen Lost: Three Essays Written as
the Courts Ruled***
June 9, 2026
A Court Finally Names the Cruelty --- What the Eleventh Circuit's nitrogen ruling actually means
On June 8, 2026, the United States Court of Appeals for the Eleventh Circuit held that Alabama's nitrogen hypoxia protocol presents a "substantial risk of serious harm" over and above death itself. Issued in the case of Jeffery Lee, the decision marks the first time any federal appellate court has examined this method of execution and concluded that it inflicts constitutionally cognizable cruelty. For more than two years the courts had treated the predicted agony of nitrogen suffocation as conjecture. This ruling treats it as fact.
Its significance lies less in the conclusion than in the path the court
took to reach it. The jurisprudence preceding Lee was a study in
deferral, a pattern I documented at length in my book, Suffocation by
Design: The Story of America's Newest Execution Method. When Alabama
sought to execute Kenneth Smith in January 2024, U.S. District Judge
Austin Huffaker conceded that Smith was "not guaranteed a painless
death" while characterizing the foreseeable suffering as something that
would materialize "only if a cascade of unlikely events occurs." The
political branches matched the bench. Having assured the court that
nitrogen would render Smith unconscious within seconds, the State
watched him thrash against the restraints and gasp for minutes, then
declared the result a vindication. Attorney General Steve Marshall
pronounced the execution "textbook." Commissioner John Hamm dismissed
the visible convulsions as "involuntary movement" that was "all
expected," insisting "nothing was out of the ordinary." That officials
could observe a man suffocating against his straps and characterize it
as routine is the executive form of the same denial the courts had
perfected...the suffering pre-explained, the spectacle absorbed into
the language of side effects.
By October 2025, when the State prepared to suffocate Anthony
Boyd...the eighth person subjected to the method, who would endure the
longest nitrogen execution in American history...Chief Judge Emily
Marks acknowledged that a conscious inmate experiences "discomfort,
panic, and emotional distress" yet absorbed that agony into the category
of an "inescapable consequence of death."
Only occasional dissents refused the euphemism. Judge Jill Pryor warned
at the outset that the cost of the method "will be Mr. Smith's human
dignity, and ours." Justice Sotomayor, dissenting as the Court permitted
Boyd's execution, identified "a significant constitutional difference
between three to six seconds of physical pain and terror and two to
seven minutes of conscious suffocation," a disparity she calculated
could significantly extend the period of terror. Yet a dissent saves no
one.
Eight executions had become the operative precedent...normalization
achieved through repetition rather than reasoning.
What changed in Lee was the evidentiary posture. Every prior challenge had been adjudicated under the compression of an execution warrant, on emergency motions and heavily redacted protocols. Lee's litigation produced the first full bench trial of the method, in which expert physicians testified at length about the physiology of air hunger. The record was unambiguous. The district court found that a condemned person remains conscious through severe air hunger, emotional distress, physiological stress, anxiety and physical discomfort for as long as one to three minutes. It credited evidence that air hunger is experienced as worse than ordinary pain, because it is inseparable from the fear of dying, a sensation witnesses compared to drowning. The proceeding also exposed the State's concealment: the court found that Alabama had falsely represented that pulse-oximeter data from earlier executions could not be preserved, when officials knew the devices had retained it. Having made these findings, Judge Marks nonetheless excused them, concluding that minutes of conscious suffocation did not constitute suffering "well beyond what's needed to effectuate a death sentence." That reflex...to see the agony, then explain it away...is precisely what the appellate panel refused to perform.
The Eleventh Circuit held that the district court's own findings
compelled the opposite result. If a person consciously endures one to
three minutes of air hunger and suffocation, the protocol presents a
substantial risk of serious harm. "Counting to 60 or 180 seconds is not
a quick exercise," the panel wrote, "and constitutionally speaking, that
timeframe is intolerable." Such suffering, the court concluded, exceeds
the mental distress ordinarily attending an impending execution. For
those of us who have stood beside the gurney and counted those seconds,
the achievement is to see them counted at last in a federal court.
That this stunning ruling and recognition came from a unanimous
panel...Judges Adalberto Jordan, Robert Luck and Embry Kidd (appointed
by Obama, Trump and Biden respectively)...makes it all the harder to
dismiss as judicial activism or wild liberal ideology.
However, candor requires acknowledging the limits of the victory. The panel resolved only the first prong of the governing Eighth Amendment test, whether the method is cruel. It remanded the second: whether Lee's proposed alternative, the firing squad, is feasible and readily available to the State. There is no stay in place. Lee's execution window opens at midnight on June 11.
The ruling's reach extends well beyond this case. Every attorney challenging the next nitrogen warrant now possesses a federal appellate holding that nitrogen executions are unconstitutionally cruel and intolerable. Every court inclined to dismiss such suffering as speculative must now reckon with judges who heard the evidence and named the cruelty. Justice Sotomayor once asked the Court to protect "the dignity of the Nation we have been, the Nation we are, and the Nation we aspire to be." On June 8, in a single circuit, a court took one step toward that obligation.
For the first time, the promoters and defenders of nitrogen executions were forced to confront the testimony of the bodies that the method produces.
Indeed, they can no longer dismiss as speculation what I and so many others have seen with our own eyes.
June 11, 2026
One Court Left: SCOTUS and Nitrogen Executions
Alabama lost. Then Alabama tried to win anyway.
This week a federal appeals court found that nitrogen hypoxia inflicts severe suffering on the human body. Judge Emily Marks acted on that finding. She blocked Alabama from putting Jeffery Lee in the mask. She entered the injunction. She named the protocol unconstitutional. She stopped the execution.
Alabama would not accept her ruling. It ran to the Eleventh Circuit. It did not ask the court for anything new. It asked the court to erase her. It asked permission to put Jeffery Lee in the mask before the warrant ran out.
The court refused.
The Eleventh Circuit denied Alabama's emergency motion. Judge Marks' injunction stands.
The state had argued that the execution should move forward despite everything the courts had already found. It pressed the deadline. It pressed the warrant. It pressed the urgency of the moment. It told the court that delay itself was the injury.
The court was not moved.
The judges said the thing that Alabama did not want said. The state does not need nitrogen. It has other methods on the books. Blocking this protocol does not erase the sentence. It takes nothing from the state except the gas.
So why fight so hard for the gas? Why the emergency motion? Why the frantic sprint back to the courthouse the moment Judge Marks acted?
Because this was never about Jeffery Lee. It was about the method. It was about the mask. It was about a protocol Alabama has staked its name on...a protocol two federal courts have now refused to bless.
For years, Alabama controlled the story. The reports called it orderly. The statements called it professional. The suffering was buried beneath paperwork. The horror was hidden behind clean words. The state asked the public to trust its descriptions over the words of witnesses.
This week, the facade broke.
The judges looked behind the mask. They did not find mercy. They did not find dignity. They found suffering. They found terror. They found a man left to suffocate inside a protocol the state swore was humane.
The mask has cracked.
Now there is one court left.
Everything rests with the Supreme Court. Steve Marshall will ask the nine justices to open the window the Eleventh Circuit just closed. He will bring the deadline. He will bring the victim. He will bring every familiar reason a court has ever been handed to look away. He will frame this as a question about finality. He will frame it as a question about order. He will do everything in his power to keep the justices from looking at what is actually inside the mask.
The Supreme Court has never called a method of execution cruel. Not once. Not in the whole life of the Eighth Amendment.
It has the chance now.
The justices hold a choice larger than one man on one night. They can keep pretending nitrogen is just another way to carry out a sentence. They can look past the air hunger, the panic and the minutes of suffocation the courts have now documented in the record. They can decide that none of it rises to the level the Constitution demands.
Or they can choose to see what two courts have already seen. That this is not humane. That this is not modern. That this is not the future of anything.
That these executions are experimental suffocations.
A wall has cracked. A narrative has collapsed. A truth has escaped the walls where Alabama tried to contain it.
For years, the state outran every question. It moved faster than the courts. It set execution dates before the litigation could catch up. It controlled the witnesses. It controlled the reports. It controlled the language.
It cannot outrun this one.
The record exists. The testimony exists. The findings exist. Judge Marks put them into law. The Eleventh Circuit refused to erase them. Two courts have looked at nitrogen execution without flinching and found it wanting.
There is one court left.
And the truth is knocking at their door.
June 12, 2026
The Execution of Nitrogen: The Beginning of the End
Last night, the Supreme Court of the United States refused to let Alabama suffocate Jeffery Lee.
Last night, nitrogen lost.
Here is what I told every reporter who called...
"This is the beginning of the end of the most horrific execution method
this country has ever devised."
For two and a half years, they told us it was humane. They told us it was painless. They told us a man with an industrial mask bolted to his face would simply drift away. I was there. I know what drifting away looks like. It looks like a body fighting for air it will never get again.
I stood with men as the nitrogen took them. I watched them shake against the straps. I watched them gasp. I watched the State of Alabama call it mercy.
The courts finally looked.
Judge Emily Marks permanently barred Alabama from putting Jeffery Lee to death by gas. The Eleventh Circuit said the method most likely violates the Eighth Amendment. The court looked at the minutes a man stays aware while he suffocates...and called it intolerable. Intolerable. Write that word down. A federal court of the United States has now said in plain English what every witness has been screaming since Kenneth Smith.
Thomas dissented. Alito dissented. Gorsuch dissented. Let the record show their names beside this method. Let history remember who wanted the gas to keep flowing.
Understand what just happened. For ten years, the Supreme Court built a wall around every death chamber in America. They told the condemned to name a better way to die. They told them to prove their own agony in advance. They made these cases nearly impossible to win. The wall held through every protocol. The wall held through every gasping man. Tonight, the wall cracked.
This is the biggest ruling on how this country kills in a generation. The decisions that emptied whole classes from the death chamber...the children...the intellectually disabled...came down decades ago. Nothing since has struck down a method. This one wounds one. A federal court called nitrogen unconstitutional, and the highest court in the land refused to save it.
Be precise...because precision is how we win. The Court did not strike nitrogen in fifty states tonight. It refused to let Alabama kill. The binding word now belongs to the Eleventh Circuit...Alabama, Georgia, Florida. Thus, nitrogen is not nationally dead by law...nitrogen is mortally wounded...and the highest court in the land would not lift a hand to save it.
Now hear me. This victory does not stop at the Alabama line.
Remember the dead. Seven men have died beneath that mask in Alabama. One in Louisiana. Kenneth Smith went first in January of 2024. Anthony Boyd took over thirty minutes to die last October. These are not statistics. These are men I prayed over...men whose last minutes I carry in my body.
So, I am naming the rest. I am naming every state still holding the canisters.
Arkansas. My home. Governor Sarah Huckabee Sanders signed a nitrogen act into law and made us the fifth state to bless this horror. Attorney General Tim Griffin has promised the people he would use it. Twenty-five souls sit on Arkansas death row tonight waiting to learn whether their governor will make them the next experiment. Governor Sanders...stop this lunacy.
Louisiana. Governor Jeff Landry signed nitrogen gas into law. Attorney General Liz Murrill practically carried Jessie Hoffman to the chamber and promised four in short order. Fifty-five souls wait at Angola. Governor Landry...stop this lunacy.
Mississippi. Oklahoma. You wrote nitrogen into your statutes...and kept the masks in the closet. Keep them there forever.
The whole apparatus must be destroyed forever.
A federal court has now said what I saw with my own eyes. The method is cruel. The method is unusual. The method is unconstitutional. The mask can't suffocate what is already apparent.
Justice Sotomayor already wrote the truth. A firing squad kills in seconds. Nitrogen suffocates for minutes. She said gassing a man turns the nation's back on the Eighth Amendment. She was right then. The courts are catching up to her now.
To the governors...to the attorneys general...to every official with a protocol locked in a drawer. The country is turning. The courts are turning. Tonight, Jeffery Lee is alive because the highest court in the land would not sign its name to his suffocation.
Everybody else should be on notice.
You all built machines to steal the breath of the condemned.
Now...we are here to take the breath of the machines.
You are about to watch the execution of nitrogen in real time.