Severe “Air Hunger” During Nitrogen Hypoxia Can Satisfy Glossip Prong One (11th Cir. 2026)

1. Introduction

This appeal concerns Alabama’s use of nitrogen hypoxia—a method of execution authorized by statute (Ala. Code §§ 15-18-82(a), 15-18-82.1(a)-(b)). Jeffery Lee, an Alabama death-row inmate, brought a 42 U.S.C. § 1983 method-of-execution challenge alleging that Alabama’s nitrogen hypoxia protocol violates the Eighth Amendment because it produces conscious suffocation and “superadds” terror and pain.

The case is procedurally significant because the district court conducted a three-day bench trial—the first such trial in the country on a nitrogen-hypoxia protocol—made detailed factual findings, and nonetheless upheld the protocol. The Eleventh Circuit reversed that legal conclusion on the first step of the governing Supreme Court framework, and remanded for consideration of Lee’s proposed alternative method: execution by firing squad (Utah-style protocol).

2. Summary of the Opinion

The Eleventh Circuit held that, accepting the district court’s factual findings as not clearly erroneous, Alabama’s nitrogen hypoxia protocol presents a “substantial risk of serious harm”—severe pain over and above death itself. The panel emphasized that the district court found a likely period of one to three minutes in which the inmate consciously experiences severe air hunger plus emotional distress, anxiety, physiological stress, and physical discomfort.

The court therefore ruled that Lee satisfied prong one of the Glossip test, reversed the judgment for the State, and remanded for the district court to address prong two (whether the firing squad is feasible, readily implemented, and significantly reduces the relevant risk). Because prong two remained unresolved and fact-bound, the Eleventh Circuit denied without prejudice Lee’s motion for a stay of execution and ordered the mandate to issue immediately so the district court could act at once.

3. Analysis

3.1. Precedents Cited

The opinion is structured around the Supreme Court’s modern method-of-execution doctrine and the appellate standards that constrain review after a bench trial.

A. The Governing Two-Prong Framework

• Glossip v. Gross, 576 U.S. 863 (2015): The foundational standard requiring the inmate to prove (1) a substantial risk of severe pain and (2) a feasible, readily implemented alternative that significantly reduces that risk. The Eleventh Circuit applied this framework as refined by later cases, focusing here on prong one and remanding for prong two.
• Bucklew v. Precythe, 587 U.S. 119 (2019): The court relied on Bucklew for several propositions: the Eighth Amendment does not guarantee a painless death; courts owe deference to state choices; and “superadded” pain is assessed comparatively, not in a vacuum. The district court used Bucklew to uphold the protocol; the Eleventh Circuit, by contrast, treated the district court’s own findings as establishing constitutionally intolerable suffering under prong one.
• Nance v. Ward, 597 U.S. 159 (2022): The opinion quoted Nance for the prong-one formulation—“severe pain over and above death itself”—and for the rule that an inmate may propose an alternative method not authorized by state law. This supported Lee’s ability to propose a firing squad.
• Price v. Comm'r, Ala. Dep't of Corr., 920 F.3d 1317 (11th Cir. 2019): Cited for the principle that the Eighth Amendment does not require adoption of a “slightly or marginally safer alternative,” reinforcing that prong two is demanding and comparative.
• Nance v. Comm'r, Ga. Dep't of Corr., 169 F. 4th 1312 (11th Cir. 2016): Cited to articulate the “objectively intolerable risk” framing used in Eighth Amendment method-of-execution analysis.

B. The Eleventh Circuit’s Prior Nitrogen Hypoxia Decision

• Grayson v. Comm'r, Ala. Dep't of Corr., 121 F. 4th 894 (11th Cir. 2024): The court distinguished its earlier affirmance of a denial of a preliminary injunction. In Grayson, the court did not decide the Eighth Amendment merits; it held only that the district court did not abuse its discretion given its record and factual findings (including testimony that the protocol inflicted psychological pain only and credited testimony that unconsciousness occurs within 10–40 seconds). Importantly, Grayson included two reservations the panel leveraged here: (1) a method could induce psychological terror severe enough for an Eighth Amendment claim; and (2) different factual findings might yield a different result.
  
  Lee is presented as that “different findings” case: the district court found severe air hunger and associated suffering for one to three minutes, and the Eleventh Circuit treated those findings as dispositive for prong one.

C. Standards of Review and Factfinding Constraints

• Dish Network, LLC v. Fraifer, 171 F.4th 1344 (11th Cir. 2026): Cited for the bench-trial appellate posture: factual findings are reviewed for clear error; legal conclusions de novo.
• Cooper v. Harris, 581 U.S. 285 (2017) and Glossip v. Gross, 576 U.S. 863 (2015): Cited for the “plausible finding must govern” and “cannot overturn simply because we would have decided differently” constraints. This mattered because both parties attacked pieces of the district court’s timeline and suffering findings.
• Eason v. Weaver, 484 F.2d 459 (5th Cir. 1973), Rixey v. W. Paces Ferry Hosp., Inc., 916 F.2d 608 (11th Cir. 1990), and United States v. Stein, 964 F.3d 1313 (11th Cir. 2020): Used to justify the district court’s prerogative to accept parts of expert testimony and reject others, and to choose between “dueling experts.”
• United States v. Barnette, 10 F.3d 1553 (11th Cir. 1994): Cited for the appellate court’s limited role: it is not the tribunal to “find facts.” This underwrote the remand on prong two.

D. Cross-Circuit Comparison on Nitrogen Hypoxia

• Hoffman v. Westcott, 131 F.4th 332 (5th Cir. 2025): The Eleventh Circuit rejected Louisiana’s Fifth Circuit decision as controlling or persuasive on these facts. In Hoffman, the Fifth Circuit vacated a preliminary injunction, noting expert testimony that nitrogen hypoxia is painless and concluding the inmate also failed prong two because experts agreed firing squad would be more painful. The Eleventh Circuit emphasized the divergence: here the trial court found “profound physiological discomfort and distress” from severe air hunger, and the district court made no findings about firing squad as an alternative.

E. Other Notable Citations

• Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997): Lee challenged the admission of the State’s expert (Dr. Antognini) under an extrapolation critique. The Eleventh Circuit expressly declined to reach that evidentiary issue given its resolution on prong one.
• Nance v. Comm'r, Ga. Dep't of Corr., 59 F. 4th 1149 (11th Cir. 2023): Cited to illustrate that firing squad can be pleaded as an alternative method and that penological-reason disputes may be resolved on remand.
• United States v. Sears, 411 F.3d 1240 (11th Cir. 2005): Cited to justify immediate issuance of the mandate to restore district court jurisdiction promptly.

3.2. Legal Reasoning

The core move in the Eleventh Circuit’s reasoning was to separate (i) factual findings about what the protocol causes from (ii) the legal characterization of those findings under the Eighth Amendment.

1. Locking in the facts under clear-error review. Both sides disputed aspects of the district court’s findings (especially the duration of consciousness/suffering). The Eleventh Circuit held there was no clear error: the findings were “plausible” in light of the record, and the district court permissibly weighed and split expert testimony.
2. Recharacterizing “air hunger” as constitutionally relevant severe harm (prong one). The district court found that the protocol causes the inmate, while conscious, to experience “severe air hunger” with emotional distress, anxiety, physiological stress, and physical discomfort for “not significantly more than one to three minutes,” and described air hunger as akin to suffocation or drowning and potentially “worse than pain.” The Eleventh Circuit treated that package of suffering as meeting Glossip’s threshold: a “substantial risk of serious harm.”
   
   The panel also rejected the district court’s attempt to cabin that suffering as essentially the inevitable fear of death plus “survival instincts.” It concluded the findings described suffering “over and above the mental distress that typically accompanies the knowledge of impending death.” A notable rhetorical/constitutional point: the court stressed that “counting to 60 or 180 seconds is not a quick exercise,” and that this timeframe is “intolerable” given the nature of the suffering found.
3. Refusing to decide prong two without trial-court factfinding. The panel held it could not determine feasibility, implementation issues, risk-of-failure questions, the “volunteer marksmen” complication, or comparative pain findings for firing squad without district court findings. Therefore it remanded with instructions to “immediately” address prong two.
4. Interim posture: reversal, immediate mandate, but no stay granted. Although the panel reversed the judgment because the district court’s legal conclusion on prong one was wrong, it denied a stay “without prejudice” because success ultimately requires prong two as well. The immediate mandate was an emergency procedural mechanism to get the case back to the district court in time to adjudicate prong two and any renewed stay request.

3.3. Impact

Even though the disposition is “NOT FOR PUBLICATION” (and thus not binding precedent in the same way a published opinion would be), the decision is likely to have substantial practical and doctrinal influence in nitrogen hypoxia litigation—especially because it is tethered to detailed trial findings.

• Doctrinal clarification within the Glossip framework: The opinion signals that conscious severe air hunger, coupled with documented physiological stress and physical discomfort, can qualify as “severe pain” (or severe harm) “over and above death itself,” even if the mechanism is not framed as “pain” in the lay sense.
• Factual-development incentive: By distinguishing Grayson based on the record, the court encourages inmates and states to litigate method-of-execution claims through robust evidentiary development (including physiological evidence and autopsy-based indicators such as pulmonary edema), rather than relying solely on competing general assertions.
• Comparative-method litigation will intensify (prong two): The remand places the focal point on whether firing squad meaningfully reduces the identified suffering and whether administrative/penological objections are legitimate. This can shape not only Alabama litigation but also disputes in other nitrogen-hypoxia states.
• Cross-circuit divergence: The explicit discussion of Hoffman v. Westcott underscores an emerging split in how courts evaluate nitrogen hypoxia risks, likely driven by record differences but potentially hardening into divergent doctrinal instincts about what counts as constitutionally significant suffering.
• Operational consequences: Immediate mandate issuance and expedited remand proceedings show how method-of-execution litigation can force accelerated district court determinations, especially on prong two’s feasibility and comparative-risk questions.

4. Complex Concepts Simplified

• Nitrogen hypoxia (as used here): The inmate breathes near-pure nitrogen through a mask. Oxygen in the lungs and blood falls toward zero. A one-way valve allows carbon dioxide to exit, so the person does not re-breathe CO₂.
• Air hunger: A severe sensation of not getting enough air—often described like suffocation or drowning. It can be “holistic,” hard to ignore, and tightly linked to panic and fear of death.
• Flash pulmonary edema: Rapid fluid accumulation in the lungs, associated (on this record) with extreme stress and blood pressure spikes. The district court found it would exacerbate difficulty breathing and likely occurred early while inmates were conscious.
• The Glossip/Bucklew two-prong test: (1) The inmate must show the method creates a substantial risk of severe pain/harm; (2) the inmate must propose a feasible, readily implemented alternative that significantly reduces that risk (and related doctrine addresses whether the state has legitimate reasons not to adopt it).
• Clear error review: On appeal after a bench trial, the appellate court largely defers to the trial judge’s factual findings if they are plausible in the record, even if the appellate judges might have weighed the evidence differently.
• Immediate mandate: The appellate court’s order returning jurisdiction to the district court right away—used here because the execution window was imminent.

5. Conclusion

Lee v. Commissioner, Alabama Department of Corrections holds that, where a trial court finds nitrogen hypoxia will likely cause a conscious inmate to experience severe air hunger and attendant distress for one to three minutes, those facts can satisfy prong one of the Supreme Court’s method-of-execution framework by establishing a substantial risk of serious harm “over and above death itself.” The Eleventh Circuit reversed the district court’s contrary legal conclusion and remanded for immediate adjudication of prong two—whether a firing squad is a feasible, readily implemented alternative that significantly reduces the identified risk.

The decision’s broader significance lies in its treatment of air hunger and suffocation-like distress as constitutionally cognizable severe harm and in its clear message that method-of-execution outcomes may turn on granular factual findings, not generalized assumptions about “painlessness.”