breaking: Nitrogen Executions Unconstitutionally Cruel

FOR IMMEDIATE RELEASE

June 8, 2026

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FEDERAL APPEALS COURT RULES NITROGEN EXECUTIONS UNCONSTITUTIONALLY CRUEL

Eleventh Circuit Reverses Lower Court in Jeffrey Lee Case, Cites “Intolerable” Suffering… Execution Intervention Project Calls Decision Landmark Victory for Abolition

The United States Court of Appeals for the Eleventh Circuit today reversed a lower court ruling and held that Alabama’s nitrogen hypoxia execution protocol presents a substantial risk of severe suffering in violation of the Eighth Amendment’s prohibition on cruel punishment. The ruling came in the case of Jeffery Lee, a death row prisoner in Alabama whose execution is currently scheduled to begin at midnight on June 11, 2026.

The Execution Intervention Project, which has worked incessantly to expose the cruelty of nitrogen executions, hailed the decision as the most significant legal development in the fight against this method of killing.

Rev. Dr. Jeff Hood, author, activist, spiritual advisor to death row prisoners, and a witness to two nitrogen executions, responded directly to the ruling:

“For the first time a court has acknowledged what I and so many others have seen with our own eyes…nitrogen executions are a unique form of horror.”

The court found that inmates executed under the nitrogen hypoxia protocol consciously experience severe air hunger…emotional distress…panic…physiological stress, and physical discomfort for one to three minutes. In language that will echo through death penalty litigation for years to come, the court declared: “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 Execution Intervention Project has pursued this truth through every available means. We have put up billboards. We have published books. We have traveled the country. We have given countless interviews. We have made a film. We have stood with the condemned. We have named what is happening. Today, a federal court named it too.

The court remanded the case to the district court for immediate consideration of whether execution by firing squad constitutes a feasible alternative to nitrogen hypoxia. No stay of execution has yet been granted, though the door remains open for Jeffrey Lee to seek one as the district court proceeds.

We call on the district court to act swiftly. We call on the state of Alabama to halt this execution. We call on Governor Kay Ivey to recognize that her state is employing a method that a federal court has now found likely produces conscious suffocation for minutes on end.

Most urgently, we pray this ruling is enough to save Jeffrey Lee’s life.

The Eleventh Circuit’s decision does not abolish nitrogen executions outright. It does something equally important: it tells the truth about what nitrogen executions are. It vindicates the testimony of witnesses, survivors, medical experts, spiritual advisors, advocates, prisoners on death row who have watched their brothers die this way, and every person who refused to look away.

The Execution Intervention Project will continue to stand at the intersection of prophetic ministry, legal advocacy, and direct human presence with those the state seeks to kill. We will not stop.

About the Execution Intervention Project

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

About Rev. Dr. Jeff Hood

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

USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 1 of 21

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 26-11864

____________________

JEFFERY LEE,

Plaintiff-Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF

CORRECTIONS,

WARDEN, HOLMAN CORRECTIONAL FACILITY,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:25-cv-00680-ECM

____________________

Before JORDAN, LUCK, and KIDD, Circuit Judges.

PER CURIAM:

Alabama is one of a number of states—the others are Ar-

kansas, Louisiana, Mississippi, and Oklahoma—which currentlyUSCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 2 of 21

2 Opinion of the Court 26-11864

authorize nitrogen hypoxia as a method of execution. See Ala.

Code §§ 15-18-82(a), 15-18-82.1(a)–(b). This appeal presents an-

other challenge to the constitutionality of nitrogen hypoxia.

In Grayson v. Comm’r, Ala. Dep’t of Corr., 121 F. 4th 894 (11th

Cir. 2024), we affirmed the denial of a preliminary injunction to

prohibit an execution in Alabama by nitrogen hypoxia. Without

determining the merits of the inmate’s Eighth Amendment claim,

we held that, given the evidence in the record and its factual find-

ings, the district court had not abused its discretion in ruling that

the inmate had not shown a substantial likelihood of success on

that claim. First, the inmate’s expert had testified that the nitrogen

hypoxia protocol only inflicted psychological pain, a pain which

would exist regardless of the method of execution. Second, the

district court had credited the testimony of a state expert that un-

consciousness would result within 10 to 40 seconds. Third, the dis-

trict court rejected the testimony of the inmate’s expert that the

protocol would result in negative pressure pulmonary edema. See

id. at 898–900.

We noted in Grayson, however, that there “may exist a form

of execution that induces psychological terror or pain that is severe

enough to support an Eighth Amendment claim.” Id. at 900 n.3.

And we expressed “no view on what the result would have been

had the district court’s factual findings been different.” Id. at 901

n.4.

In this case, Jeffery Lee, an Alabama inmate under sentence

of death, filed an action under 42 U.S.C. § 1983 in August of 2025,USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 3 of 21

26-11864 Opinion of the Court 3

alleging that the nitrogen hypoxia protocol violated the Eighth

Amendment. See generally D.E. 1. On February 2, 2026, Mr. Lee

filed an amended complaint, where he proposed execution by firing

squad, similar to Utah’s protocol, as an alternative method of exe-

cution. See D.E. 40. See also D.E. 173-40.

One week later, on February 9, 2026, Alabama moved to set

his execution. On April 15, 2026, the Governor set Mr. Lee’s exe-

cution for a 30-hour period beginning on June 11, 2026, at 12:00

a.m., and concluding on June 12, 2026, at 6:00 a.m. See D.E. 127-1.

From April 27–29, 2026, the district court held a three-day

bench trial on the constitutionality of Alabama’s nitrogen hypoxia

protocol, the first such trial in the country . The parties introduced

voluminous evidence, including testimony from seven lay wit-

nesses and four expert witnesses, and hundreds of exhibits totaling

thousands of pages.

After weighing the evidence presented, the district court en-

tered an order rejecting Mr. Lee’s Eighth Amendment claim. The

district court found that an inmate who is executed under the ni-

trogen hypoxia protocol “consciously” experiences “severe air hun-

ger and corresponding emotional distress, anxiety, physiological

stress, and physical discomfort” for “one to three minutes,” but

concluded that the protocol does not violate the Eighth Amend-

ment by causing “severe pain or suffering ‘well beyond what’

s

needed to effectuate a death sentence.’” Lee v. Lovelace, No. 25-cv-

680, ___ F. Supp. 3d ___, 2026 WL 1493098, at *22, *25 (M.D. Ala.

May 28, 2026). Given its ruling, the district court did not addressUSCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 4 of 21

4 Opinion of the Court 26-11864

whether execution by firing squad pursuant to Utah’s protocol con-

stitutes a feasible and readily implemented alternative method of

execution that significantly reduces a substantial risk of severe pain.

See id. at *22.

Mr. Lee appealed the district court’s judgment, and sought

a stay of execution. We expedited briefing and heard oral argu-

ment by videoconference on Friday , June 5, 2026.

We hold that, given the district court’s factual findings—

which are not clearly erroneous—Mr. Lee has shown that the pro-

tocol “presents a ‘substantial risk of serious harm’

—severe pain

over and above death itself.” Nance v. Ward, 597 U.S. 159, 164 (2022)

(quoting Glossip v. Gross, 576 U.S. 863, 877 (2015)). See also Nance v.

Comm’r, Ga. Dep’t of Corr., 169 F. 4th 1312, 1318 (11th Cir. 2016) (ex-

plaining that the question is whether the method of execution “cre-

ates a substantial risk of serious harm, an objectively intolerable

risk of harm that prevents prison officials from pleading that they

were subjectively blameless for purposes of the Eighth Amend-

ment”). We therefore reverse the district court’s judgment and re-

mand for consideration of the firing squad alternative proposed by

Mr. Lee.

I

A jury found Mr. Lee guilty of the 1998 murders of Jimmy

Ellis and Elaine Thompson, as well as the attempted murder of

Helen King, during a robbery. See Lee v. State, 898 So. 2d 790, 807

(Ala. Crim. App. 2001). After the penalty phase of the trial, the juryUSCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 5 of 21

26-11864 Opinion of the Court 5

recommended by a vote of 7 to 5 that he be sentenced to imprison-

ment for life without the possibility of parole for the murders. See

id. at 807–808. Under then-governing Alabama law, the trial court

exercised its discretion to override the jury’s recommendation and

sentence Mr. Lee to death. See id. at 808.

After exhausting his direct and collateral remedies, see, e.g.,

Lee v. Comm’r, Alabama Dep’t of Corr., 726 F.3d 1172 (11th Cir. 2013),

Mr. Lee filed an action under 42 U.S.C. § 1983 challenging Ala-

bama’s lethal injection protocol as violative of the Eighth Amend-

ment. See Lee v. Dunn, No. 16-473, 2017 WL 1483530 (S.D. Ala. Apr.

24, 2017), vacated in part, 731 F. App’x 885 (11th Cir. 2018). That

lawsuit became moot in 2018 when Mr. Lee elected to be executed

by nitrogen hypoxia, which had recently been authorized by the

Alabama Legislature for the first time. See Lee, No. 16-473, D.E. 38

(order granting joint motion to dismiss) (S.D. Ala. July 20, 2018).

On August 22, 2025, Mr. Lee filed the present § 1983 action

against the Commissioner of Alabama’s Department of Correc-

tions challenging Alabama’s nitrogen hypoxia protocol. Although

Alabama had not yet set his execution date, Mr. Lee explained that

he brought his suit “to avoid being denied relief . . . on timeliness

grounds.” D.E. 1 at ¶ 3.

After the district court granted in part and denied in part the

Commissioner’s motion to dismiss, Mr. Lee filed an amended com-

plaint in February of 2026. He alleged that “[e]xecution by nitrogen

hypoxia” induces “conscious suffocation” that “is cruel and unusual

because it superadds terror and pain during the execution.” D.E.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 6 of 21

6 Opinion of the Court 26-11864

40 at ¶ 63. He proposed that execution by firing squad similar to

Utah’s protocol is a feasible and readily implemented alternative

method that would significantly reduce the substantial risk of se-

vere pain associated with nitrogen hypoxia. See id. at ¶¶ 69–72. See

also D.E. 173-40. About a week later, the state asked the Alabama

Supreme Court to set Mr. Lee’s execution date. See D.E. 176 at 9.

The Alabama Supreme Court granted the motion, and on April 15,

2026, the Governor declared that Mr. Lee’s execution would take

place during a 30-hour window commencing on June 11, 2026, at

12:00 a.m.1

Following discovery, the district court held a three-day

bench trial, at which it heard the testimony of eleven witnesses,

admitted hundreds of exhibits totaling thousands of pages, and

viewed video demonstrations of the nitrogen hypoxia systems of

Alabama and Louisiana. See Lee, 2026 WL 1493098, at *6. Mr. Lee

called three experts, two of whom were Dr. Richard Schwartzstein

and Dr. Julie Bastarache. Dr. Schwartzstein was admitted as an ex-

pert in pulmonology, critical care medicine, physiology, hypoxia,

dyspnea, and air hunger. Dr. Bastarache was admitted as an expert

in pulmonology, critical care medicine, and pathology. For its part,

1 As the district court explained, a number of other Alabama inmates also filed

a similar action challenging the nitrogen hypoxia protocol. Their cases were

initially consolidated with Mr. Lee’s, but when the state indicated that it was

going to move to set an execution date for Mr. Lee, his case was deconsoli-

dated. See Lee, 2026 WL 1493098, at *4.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 7 of 21

26-11864 Opinion of the Court 7

the Commissioner called Dr. Joseph F. Antognini, an expert in an-

esthesiology. See id. at *5. We summarize the evidence and the

district court’s findings of fact below.2

A

“Nitrogen hypoxia, as set out in Alabama’s protocol, causes

death by introducing ‘pure nitrogen gas . . . to the condemned in-

mate through an industrial-use respirator mask until the inmate is

declared dead.’” Grayson, 121 F.4th at 896. The parties generally

agree on how Alabama’s nitrogen hypoxia protocol is carried out.

As the district court explained, the execution team escorts

the inmate to the execution chamber. See Lee, 2026 WL 1493098,

at *3. They then secure the inmate to the gurney with a chest and

shoulder harness made of nylon straps, attach pulse oximeters, and

secure a mask to the inmate’s face. See id. After the death warrant

is read and the inmate makes his final statement, the warden acti-

vates the nitrogen hypoxia system, which causes ultra-high purity

nitrogen gas to flow into the mask. See id. The nitrogen gas dis-

places breathable air until the inmate is breathing almost pure ni-

trogen. See id. The mask allows exhaled carbon dioxide to exit via

a one-way valve, which prevents the inmate from rebreathing car-

bon dioxide. See id. When the brain is deprived of oxygen for long

enough, unconsciousness and death ensue. See id.

2 We thank the district court for its comprehensive order. Given time con-

straints, we do not summarize all of the evidence presented at the bench trial.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 8 of 21

8 Opinion of the Court 26-11864

Mr. Lee is scheduled to be the eighth inmate in Alabama ex-

ecuted by nitrogen hypoxia. In March of 2025, Louisiana executed

Jessie Hoffman, Jr. via a nitrogen hypoxia protocol similar to Ala-

bama’s. See id. at *4.

B

The district court credited the following opinions of Dr.

Schwartzstein and/or Dr. Bastarache regarding severe air hunger

caused by the nitrogen hypoxia protocol.

• Inmates executed under the nitrogen hypoxia protocol

“likely experience severe air hunger, which evokes distress

and anxiety.” Id. at *14. Specifically, the district court cred-

ited Dr. Bastarache’s opinion that “air hunger triggers the

body’s ‘extreme physiologic need to get more oxygen’ and

produces ‘intense physiologic stress that causes intense suf-

fering.’” Id. (record citations omitted). “Because the inmate

cannot respond to his ‘basic survival instincts’ to address the

air hunger, a ‘vicious cycle of increasing air hunger and panic

symptoms’ can occur.” Id. (record citations omitted).

• “Unlike pain, which is normally localized to a specific body

part, air hunger is ‘a holistic discomfort sensation,’ and indi-

viduals struggle to distract themselves from their dyspnea.”

Id. at *15 (record citation omitted). “Because it evokes a fear

of dying, air hunger can be worse than pain.” Id.

• “[A]t a partial pressure of oxygen (PO2) below 60 mm

Hg . . . , a person’s drive to breathe ‘takes off,’ making himUSCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 9 of 21

26-11864 Opinion of the Court 9

or her ‘desperate to try to do something to correct the hy-

poxemia.’” Id. (record citations omitted). Given that the

goal of the nitrogen hypoxia protocol “is to take the inmate’s

PO2 all the way down to 0 mm Hg,” the protocol “evokes

an ‘incredibly strong stimulus’ to breathe.” Id. And, “while

only a minor factor, the inmate’s awareness that he cannot

alleviate his dyspnea . . . would exacerbate his anxiety and

the air hunger itself.” Id.

• “[F]our inmates executed under the [p]rotocol had flash pul-

monary edema, which would have exacerbated their dysp-

nea.” Id. “[F]lash pulmonary edema is a condition triggered

by extreme distress in which the lungs ‘almost instantane-

ously’ fill with fluid, making it ‘extremely difficult to

breathe.’” Id. “Of the inmates executed under the [p]rotocol

who have had autopsies performed . . . , all four had evi-

dence of flash pulmonary edema caused by a sudden rise in

blood pressure,” which is “an abnormal autopsy finding.”

Id. “Flash pulmonary edema indicates severe physiological

stress; exacerbated the inmates’ dyspnea; and would have

occurred ‘very early on in the executions’ while the inmates

were conscious and ‘when air hunger was occurring and

reaching its peak[.]’” Id.

• “[H]ypoxia causes dyspnea even when carbon dioxide levels

are normal and, therefore, the lack of carbon dioxide

buildup in the mask does not eliminate or reduce the possi-

bility of severe air hunger.” Id. at *16.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 10 of 21

10 Opinion of the Court 26-11864

•

“Several factors can alleviate air hunger, including taking

larger breaths and reducing anxiety. In the clinical and re-

search settings, mitigating the dyspneic subject’s anxiety is

possible. In the research setting, for example, researchers

can reassure the subjects that the air hunger is merely part

of the experiment, and this reassurance helps the subjects

tolerate the discomfort of air hunger. And in the clinical set-

ting, doctors can reassure many patients that the patients’

dyspnea is a consequence of their condition and that it does

not mean they are going to die. In an execution setting, such

reassurance is not possible because the goal is to cause the

inmate’s death.” Id. at *25.

Mr. Lee and the Commissioner “vigorously contest[ed]”

how long it takes an inmate being executed by nitrogen hypoxia to

become unconscious and how long he is capable of experiencing

suffering. See id. at *16. Dr. Antognini opined that inmates are

rendered unconscious within 60 to 75 seconds after the nitrogen

gas is turned on, while Dr. Bastarache posited that four inmates

previously executed by nitrogen hypoxia remained conscious for

three to seven minutes. See id.

Ultimately, after considering the conflicting evidence, the

district court found that an inmate who is executed under the pro-

tocol “experiences severe air hunger and corresponding emotional

distress, anxiety, physiological stress, and physical discomfort” for

“not significantly more than one to three minutes.” Id. at *25. It

explained that “air hunger causes extreme emotional distress,USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 11 of 21

26-11864 Opinion of the Court 11

panic, anxiety, and fear because breathing is essential to human life.

Patients often describe air hunger as akin to suffocation or drown-

ing.” Id. at *24 (internal quotation marks omitted).3

C

After making these factual findings, the district court con-

cluded that Alabama’s nitrogen hypoxia protocol does not cause

needless suffering and therefore does not violate the Eighth

Amendment. See id. Although the protocol “likely causes severe

air hunger—the most severe form of breathing discomfort—for

one to three minutes,” that “pain, anxiety, and dread” is primarily

a result of inmates “know[ing] they are going to die” and “their

body’s survival instincts” kicking in. See id. at *22–23. Thus, the

district court reasoned, the nitrogen hypoxia protocol does not

cause suffering “well beyond what’s needed to effectuate a death

sentence.” Id. at *22 (quoting Bucklew v. Precythe, 587 U.S. 119, 136–

37 (2019)). See also id. at *23 (“[T]he physiological discomfort

caused by the Protocol does not violate the Constitution.”).

3 Dr. Schwartzstein opined that a person being executed by nitrogen hypoxia

continues to suffer pain for three to five minutes after becoming unconscious.

The district court did not address whether that opinion was persuasive or not.

See id. at *17. Instead, it declined to consider the opinion because, in its view,

an unconscious person “does not experience or perceive dyspnea of a consti-

tutionally relevant kind.” Id. At oral argument, counsel for Mr. Lee asserted

(without waiving any argument in his brief) that this Court could grant him

relief without addressing that ruling. We agree, and express no view on the

alleged unconscious suffering.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 12 of 21

12 Opinion of the Court 26-11864

Because it concluded that the nitrogen hypoxia protocol did

not cause needless suffering in violation of the Eighth Amendment,

the district court did not reach Mr. Lee’s proposed alternative of

execution by firing squad. See id. at *25. See also Nance, 169 F.4th

at 1318 (“If the planned method does not present a substantial risk

of serious harm, the officials may use it regardless of the proposed

alternatives.”).

II

In an appeal from a bench trial, we review factual findings

for clear error and legal conclusions de novo. See Dish Network, LLC

v. Fraifer, 171 F.4th 1344, 1351 (11th Cir. 2026).

Under clear error review, a factual “finding that is ‘plausible’

in light of the full record—even if another is equally or more so—

must govern.” Cooper v. Harris, 581 U.S. 285, 293 (2017). “This

standard does not entitle us to overturn a finding simply because

we are convinced that we would have decided the case differently.”

Glossip, 576 U.S. at 881 (internal quotation marks and brackets

omitted).

Once the relevant underlying facts are determined, whether

a method of execution violates the Eighth Amendment presents a

question of law. See Grayson v. Warden, Comm’r, Ala. Dep’t of Corr.,

869 F.3d 1204, 1239 (11th Cir. 2017). Accord Bucklew v. Precythe, 883

F.3d 1087, 1094 (8th Cir. 2018) (“[W]hether a method of execution

‘constitutes cruel and unusual punishment is a question of law.’”)

(citation omitted), aff’d, 587 U.S. 119 (2019).USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 13 of 21

26-11864 Opinion of the Court 13

III

Under governing Supreme Court precedent,

[t]he Eighth Amendment “does not demand the

avoidance of all risk of pain in carrying out execu-

tions.” To the contrary, the Constitution affords a

“measure of deference to a State’s choice of execu-

tion procedures” and does not authorize courts to

serve as “boards of inquiry charged with determining

‘best practices’ for executions.” The Eighth Amend-

ment does not come into play unless the risk of pain

associated with the State’s method is “substantial

when compared to a known and available alterna-

tive.”

Bucklew, 587 U.S. at 134 (citations omitted).

To succeed on a method-of execution claim, an inmate must

satisfy two requirements. First, he “must establish that

the . . . method of execution presents a ‘substantial risk of serious

harm’

—severe pain over and above death itself.” Nance, 597 U.S. at

164 (quoting Glossip, 576 U.S. at 877). Second, he “‘must identify

an alternative method that is feasible, readily implemented, and in

fact significantly reduces’ the risk of harm involved.” Id. (quoting

Glossip, 576 U.S. at 877) (brackets omitted). See Bucklew, 587 U.S. at

136 (“Distinguishing between constitutionally permissible and im-

permissible degrees of pain . . . is a necessarily comparative exercise.

To decide whether the State has cruelly ‘superadded’ pain to the

punishment of death isn’t something that can be accomplished by

examining the State’s proposed method in a vacuum, but only byUSCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 14 of 21

14 Opinion of the Court 26-11864

‘compar[ing]’ that method with a viable alternative.”). “Where a

prisoner claims a safer alternative to the State’

s . . . protocol, he

cannot make a successful challenge by showing a ‘slightly or mar-

ginally safer alternative.’” Price v. Comm’r, Ala. Dep’t of Corr., 920

F.3d 1317, 1326 (11th Cir. 2019) (quoting Glossip, 576 U.S. at 877).

Nevertheless, he may identify “an alternative method that is not

[currently] authorized” by state law. See Nance, 597 U.S. at 163–64,

173. See also Bucklew, 587 U.S. at 139–40.

The district court found that the nitrogen hypoxia protocol

causes one to three minutes of “severe air hunger and correspond-

ing emotional distress, anxiety, physiological stress, and physical

discomfort.” Lee, 2026 WL 1493098, at *25.

Air hunger involves activation of brain regions dedi-

cated to basic survival instincts, which include the

need to breathe adequately. When breathing is insuf-

ficient, severe distress, anxiety, and panic are normal

and expected human sensations that, under typical

circumstances, highly motivate an individual to im-

prove [his] breathing immediately or face imminent

death.

Id. at *24. “Many people find air hunger worse than pain because

it is associated with the fear of dying.” Id.

A

The parties challenge some of the district court’s factual

findings. Mr. Lee, for example, asserts that the district court should

have found, based on the expert testimony he presented, that in-

mates subjected to execution by nitrogen hypoxia could remainUSCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 15 of 21

26-11864 Opinion of the Court 15

conscious for three to seven minutes. The Commissioner, for his

part, attacks the district court’s finding that the protocol causes an

inmate to experience air hunger and associated distress for not sig-

nificantly more than one to three minutes. See Brief for Appellant

at 26; Brief for Appellee at 35.

We discern no clear error in any of the district court’s factual

findings. As noted, a finding that is plausible, even if another is

equally or more so, must govern. See Cooper, 581 U.S. at 293. And

we cannot “overturn a finding simply because we are convinced

that we would have decided the case differently.” Glossip, 576 U.S.

at 881 (internal quotation marks and brackets omitted).

A district court in a bench trial is not required to accept an

expert’s opinion even if unimpeached. See, e.g., Eason v. Weaver, 484

F.2d 459, 460 (5th Cir. 1973). And, like a jury, when a district court

performs the role of factfinder it “is not required to accept ‘all or

none’ of a witness’[ ] testimony; rather, [it] may accept those por-

tions of a witness’[ ] testimony which it considers credible and re-

ject other portions which it finds to be improbable.” Rixey v. W.

Paces Ferry Hosp., Inc., 916 F.2d 608, 616 (11th Cir. 1990). The district

court here did not err, much less clearly err, in accepting some of

the expert testimony and in rejecting other aspects of that same

testimony. See United States v. Stein, 964 F.3d 1313, 1322 (11th Cir.

2020) (“Our case law is . . . unambiguous: the district court fre-

quently must choose between dueling experts, and if that decision

is reasonably based on evidence found in the record, the choice is

not clear error.”).USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 16 of 21

16 Opinion of the Court 26-11864

B

Based upon the district court’s factual findings, we hold that

Alabama’s nitrogen hypoxia protocol “presents a ‘substantial risk

of serious harm’

—severe pain over and above death itself.” Nance,

597 U.S. at 164. Mr. Lee has therefore satisfied the first prong of

the Glossip Eighth Amendment standard.4

As intended, the protocol causes death by introducing pure

nitrogen gas through a respirator mask until the inmate is declared

dead. The district court found that an inmate executed under the

protocol suffers one to three minutes of “severe air hunger and cor-

responding emotional distress, anxiety, physiological stress, and

physical discomfort.” Lee, 2026 WL 1493098, at *25. This mental

distress, physiological suffering, and physical discomfort, the dis-

trict court found, will likely take place. There is, in other words, a

substantial risk of serious harm. The risk is not conjectural, spec-

ulative, or doubtful.

The Eighth Amendment does not “guarantee a prisoner a

painless death.” Bucklew, 587 U.S. at 132. Yet at the Founding,

“cruel” was “often defined to mean . . . ‘[d]isposed to give pain to

others, in body or mind[.]’” Id. at 130 (quoting 1 Noah Webster, An

4 Mr. Lee challenges the district court’s order allowing the testimony of Dr.

Antognini, the Commissioner’s expert, on the ground that he did not suffi-

ciently explain the extrapolation underlying some of his opinions. See Gen.

Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Given our resolution on the first

prong of Glossip, we need not address this issue.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 17 of 21

26-11864 Opinion of the Court 17

American Dictionary of the English Language (1828) (first set of

brackets in original)).

In our view, 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. Such suf-

fering, we believe, is over and above the mental distress that typi-

cally accompanies the knowledge of impending death by execu-

tion.

The Fifth Circuit’s 2-1 decision in Hoffman v. Westcott, 131

F.4th 332 (5th Cir. 2025), does not call for a different result.

In Hoffman, Louisiana appealed a preliminary injunction that

prevented state officials from executing an inmate through nitro-

gen hypoxia. The Fifth Circuit vacated the preliminary injunction.

It held that the inmate failed to meet the two requirements de-

manded under Supreme Court precedent—namely, that the

method of execution “presents a risk that is ‘sure or very likely to

cause serious illness and needless suffering,’” id. at 335 (quoting

Glossip, 576 U.S. at 877), and that the State could use “a feasible and

readily implemented alternative method of execution that would

significantly reduce a substantial risk of severe pain” which it “has

refused to adopt without a legitimate penological reason,

” id.

(quoting Bucklew, 587 U.S. at 134).USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 18 of 21

18 Opinion of the Court 26-11864

As to the first requirement, the Fifth Circuit explained that

“the district court heard expert testimony from both parties that

nitrogen hypoxia is painless.” Id. at 336. With respect to the second

requirement, the Fifth Circuit concluded that “experts for both par-

ties agreed that death by firing squad”—Mr. Hoffman’s proposed

alternative means of execution—would “be more painful than exe-

cution by nitrogen hypoxia.” Id.5

Here, in contrast, the district court found that nitrogen hy-

poxia causes an inmate to suffer “profound physiological discom-

fort and distress”

—in addition to mental distress—through severe

air hunger, see Lee, 2026 WL 1493098 at *22, and physiological dis-

tress is at least partly physical. See Webster’s Third New World Dic-

tionary (Unabridged) 1707 (2012) (defining “physiological” in part

as “characteristic of or appropriate for an organism’s healthy or

normal functioning”); The American Heritage Dictionary of the

English Language 1325 (4th ed. 2009) (defining “physiological” in

part as “[b]eing in accord with or characteristic of the normal func-

tioning of a living organism”); 2 Shorter Oxford English Dictionary

2194 (5th ed. 2002) (defining “physiological” in part as “[p]ertaining

5 The dissent in Hoffman believed that the majority had failed to address the

district court’s findings that inmates executed by nitrogen hypoxia faced con-

scious terror and a sense of suffocation for 35 to 40 seconds on the low end

and conscious psychological suffering for three to five minutes if they held

their breath. See id. at 337 (Haynes, J., dissenting).USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 19 of 21

26-11864 Opinion of the Court 19

to the material universe or to natural science; physical”). The dis-

trict court here also did not make any findings about the firing

squad as an alternative method of execution.

C

Under the second prong of Glossip, Mr. Lee must also iden-

tify an alternative method that “is feasible, readily implemented,

and in fact significantly reduces the risk of harm involved.” Nance,

597 U.S. at 164 (quotations and brackets omitted). He asserts that

execution by firing squad pursuant to the Utah protocol is a feasi-

ble, readily implementable, and less painful alternative within the

meaning of the Eighth Amendment. As noted, an “inmate seeking

to identify an alternative method of execution is not limited to

choosing among those presently authorized by a particular State’s

law.” Bucklew, 587 U.S. at 139–40. Cf. Nance v. Comm’r, Ga. Dep’t of

Corr., 59 F. 4th 1149, 1155–56 (11th Cir. 2023) (holding that a Geor-

gia inmate set for execution by lethal injection sufficiently pled that

the firing squad was an alternative method of execution, but not

addressing whether the state had a “legitimate penological reason”

for refusing to use the firing squad and allowing district court to

address that issue on remand).

The district court, as noted, did not address whether Mr. Lee

had shown that the firing squad was a feasible and readily imple-

mented alternative method that would significantly reduce the risk

of harm. Mr. Lee asks us to resolve that issue now , but we are not

equipped to do so. As an appellate tribunal, it is not our “role to

find facts,” United States v. Barnette, 10 F.3d 1553, 1558 (11th Cir.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 20 of 21

20 Opinion of the Court 26-11864

1994), and we cannot therefore make findings with respect to feasi-

bility given the conflicting testimony on matters that might affect

that issue (e.g., the risk of failure with the firing squad, and whether

the need for volunteer marksmen from the correctional staff

amounts to a valid penological reason to reject that method). Com-

pare Br. for Appellant at 50–52, with Br. for Appellee at 39–46. Nor

are we able to make factual determinations about what pain, if any,

an inmate will suffer if executed by firing squad. Mr. Lee seems to

grudgingly recognize some of these problems, as he alternatively

requests a remand to the district court to address the firing squad.

See Reply Br. of Appellant at 12 (“To the extent this Court doubts

whether Mr. Lee met his burden of identifying an alternative

method of execution, the appropriate remedy is to remand for fur-

ther proceedings, not to dismiss [the] Eighth Amendment claim.”).

We therefore remand the case to the district court with in-

structions to immediately address the second prong of Glossip. And

because we cannot make a determination about likelihood of suc-

cess on that prong on this record, we deny without prejudice Mr.

Lee’s current motion for a stay of his execution.

IV

Under the facts found by the district court, Alabama’s nitro-

gen hypoxia protocol “presents a ‘substantial risk of serious

harm’

—severe pain over and above death itself.” Nance, 597 U.S. at

164 (quoting Glossip, 576 U.S. at 877). As a result, Mr. Lee has satis-

fied the first prong of Glossip, and we reverse the district court’s

judgment in favor of the Commissioner.USCA11 Case: 26-11864 Document: 41-1 Date Filed: 06/08/2026 Page: 21 of 21

26-11864 Opinion of the Court 21

Given the parties’ disputes on prong two of Glossip, some of

which are factual, the district court will now need to determine in

the first instance 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. See id. If Mr. Lee files a motion for stay

of execution, the district court will have to rule on that as well.

Given the impending execution window for Mr. Lee, we or-

der the clerk to issue the mandate immediately (i.e., along with the

filing of this opinion). That way the district court will reacquire

jurisdiction right away. See United States v. Sears, 411 F.3d 1240, 1241

(11th Cir. 2005) (“Issuance of the mandate g[ives] the district court

jurisdiction over the case again.”).6

REVERSED AND REMANDED.

6 If we issued a published opinion in this case, we could not expedite the issu-

ance of the mandate without providing “reasonable notice” to the other mem-

bers of this Court. See 11th Cir. R. 41-2.USCA11 Case: 26-11864 Document: 41-2 Date Filed: 06/08/2026 Page: 1 of 2

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

David J. Smith

Clerk of Court

For rules and forms visit

www.ca11.uscourts.gov

June 08, 2026

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 26-11864-P

Case Style: Jeffery Lee v. Commissioner, Alabama Department of Corrections, et al

District Court Docket No: 2:25-cv-00680-ECM

Opinion Issued

Enclosed is a copy of the Court’s decision issued today in this case. Judgment has been entered

today pursuant to FRAP 36. The Court’s mandate will immediately.

Petitions for Rehearing

The time for filing a petition for panel rehearing or rehearing en banc is governed by 11th Cir.

R. 40-2. Please see FRAP 40 and the accompanying circuit rules for information concerning

petitions for rehearing.

Costs

No costs are taxed.

Bill of Costs

If costs are taxed, please use the most recent version of the Bill of Costs form available on the

Court’s website at www.ca11.uscourts.gov. For more information regarding costs, see FRAP 39

and 11th Cir. R. 39-1.

Attorney’s Fees

The time to file and required documentation for an application for attorney’s fees and any

objection to the application are governed by 11th Cir. R. 39-2 and 39-3.

Appointed Counsel

Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming

compensation via the eVoucher system no later than 45 days after issuance of the mandate or

the filing of a petition for writ of certiorari. Please contact the CJA Team at (404) 335-6167 or

[email protected] for questions regarding CJA vouchers or the eVoucher

system.

Clerk’s Office Phone Numbers

General Information: 404-335-6100 Attorney Admissions: 404-335-6122USCA11 Case: 26-11864 Document: 41-2 Date Filed: 06/08/2026 Page: 2 of 2

Case Administration: 404-335-6135 Capital Cases: 404-335-6200

CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141

OPIN-1 Ntc of Issuance of Opinion