Alabama Attorney General Steve Marshall's office is appealing a federal court ruling that permanently bars the state from carrying out executions by nitrogen gas, setting up a higher-stakes round in a legal fight that has halted the method Alabama pioneered two years ago.

US District Judge Emily C. Marks this week permanently blocked the state from executing Jeffrey Lee, 49, by nitrogen hypoxia, finding the method violates the Eighth Amendment's ban on cruel and unusual punishment. Lee had been scheduled to die Thursday.

The ruling followed a decision by a three-judge panel of the 11th US Circuit Court of Appeals, which found that the roughly three minutes it can take for a person to lose awareness while breathing pure nitrogen is an 'intolerable' time frame 'given the suffering that would likely take place under Alabama's nitrogen hypoxia protocol.' The panel's decision reversed Marks' own earlier finding that the protocol passed constitutional muster, and she entered the permanent injunction hours later.

The decision does not spare Lee from execution altogether. Marks noted that Alabama retains two other authorized methods — lethal injection and the electric chair — and that Lee 'is not entitled to an injunction barring the state from executing him using one of those methods.'

Alabama became the first state to execute a prisoner with nitrogen gas in January 2024 and has used the method repeatedly since, with witnesses at several executions describing prisoners visibly convulsing and gasping for extended periods. State officials have consistently defended the protocol as humane and effective.

The appeal puts the question on a path that could reach the full 11th Circuit or the US Supreme Court, with consequences beyond Alabama: Louisiana, Mississippi and Oklahoma have authorized nitrogen executions, and several other states have considered the method amid persistent shortages of lethal injection drugs.

Lee's execution is on hold while the appeal proceeds and the state determines whether to seek a new death warrant under one of its remaining methods.