By: Amanda Dobrucky
Published: March 17, 2026
During a Florida’s legislative session in 2025, Governor Ron DeSantis signed over 70 pieces of legislation that took effect on July 1, 2025,[1] including Florida House Bill 903, which discusses correctional facilities.[2] The “Other Provisions” section of this new law authorizes death sentence executions through a controversial method: nitrogen gas.[3] Allowing nitrogen gas executions goes against the Eighth Amendment of the United States Constitution and constitutes a cruel and unusual punishment.[4]
Alabama was the first state to execute those on death row using nitrogen gas, Kenneth Smith being the first casualty on January 25, 2024.[5] Nitrogen hypoxia forces the inmate to breath pure nitrogen gas, depriving the body of oxygen, which leads to inevitable organ failure and death.[6] The state claimed Smith’s death would be painless, but witnesses at the execution say he was writhing in pain and was not pronounced dead until twenty-two minutes after the execution started.[7] Alabama attempted execution by lethal injection on Mr. Smith two years prior but ceased when they could not find a suitable vein.[8] Currently, Alabama’s primary method of execution is by lethal injection, but inmates can elect for death by nitrogen gas or electrocution instead. [9]
Since 2024, Alabama has executed a total of four inmates using nitrogen gas.[10] The United States Supreme Court has not reviewed the constitutionality of nitrogen hypoxia executions,[11] but a District Court in Alabama has permitted the use of nitrogen gas in executions.[12] While Smith’s attorney argued that the state was making him a test subject with this unprecedented method, the court disagreed.[13] The court decided to not use the traditional Baze standard[14] and instead held that Smith had a “high bar” to meet and did not do so here.[15] To meet the bar, Smith had to show (1) that the challenged method is sure or very likely to cause serious illness and needless death and (2) the existence of another method that is feasible, readily implemented, and reduces pain that the State has refused to use.[16]
The United States Supreme Court ruled in Baze v. Rees that in order for a death penalty method to constitute cruel and unusual punishment under the Eighth Amendment, the method must present a substantial or objectively intolerable risk of serious harm.[17] The Court held that lethal injection posed no substantial or objectively intolerable risk of serious harm to the inmate receiving the lethal injection.[18] The Court described that pain from death or accident would happen, but that the pain only rises to the level of cruel and unusual punishment when an execution is attempted more than once—such as attempting electrocution multiple times.[19] In Smith’s case, however, the District Court did not use the Baze standard to determine if nitrogen gas was considered cruel and unusual punishment.[20]
Under the current Baze standard, nitrogen hypoxia should satisfy the standard of substantial or objectively intolerable risk of harm.[21] As shown in the seven Alabama executions, each person experienced visibly excruciating pain for anywhere from ten to forty minutes.[22] The effects of nitrogen gas take a significantly longer time than the state’s idea of inmates passing out in seconds and dying within minutes.[23] This causes the inmates to not only feel the physical pain of choking and jerking while they stay conscious, but will also cause them to go through grueling mental pain as they try to instinctually breathe while also knowing that breathing will kill them.[24] This is more mental pain than other execution methods have on inmates.[25]
The United Nations (“UN”) has deemed the use of nitrogen gas is not a humane method of execution.[26] This determination was made by UN Special Rapporteurs, or independent experts, that work with the UN Human Rights Council.[27] The UN experts commented on this type of execution saying it would “violate the prohibition on torture and other cruel, inhumane or degrading punishment”.[28] The experts state that nitrogen hypoxia will cause a painful and humiliating death, and even goes against the Convention Against Torture.[29] Alabama is currently violating this convention because of the extended time each execution takes.[30] The most recent execution using nitrogen gas in Alabama took over 40 minutes for the person to be pronounced dead.[31] During that time, the person was writhing around and seen trying to catch his breath.[32] The Baze standard is a high bar for plaintiffs to overcome and, until it is met, the United States Supreme Court will continue to allow these executions to occur.[33] In the meantime, the courts are following a standard the Smith and Boyd cases used, stating that plaintiffs needed to show another feasible option for the execution.[34]
The seven men that have been executed using nitrogen gas in Alabama have been subjected to cruel and unusual punishment under the Eighth Amendment.[35] All of them have suffered for longer periods of time than Alabama promised these inmates.[36] Until a federal court recognizes these long periods of torture meets the Baze standard, more inhumane deaths will occur.[37] The mental pain this causes the inmates is far worse than any other execution method and causes the inmate to suffer more than necessary.[38] Since Alabama has been allowed to carry out these executions, other states are including similar provisions in their laws.[39]
The federal courts are blatantly ruling in contradiction against the Eighth Amendment by ignoring the extreme duration of an execution by nitrous gas.[40] The most recent execution using this method took forty minutes for the prisoner to be pronounced dead, all the while he was shaking and gasping for breath.[41] Many have criticized the inhumane nature of using nitrogen gas for executions,[42] especially as more deaths continue to happen. Nonetheless, Alabama and other states that are allowing this type of execution have no incentive to change their practices or protect the rights of inmates while the courts continue to rule in their favor.
[1] See Nancy Gay, New Florida Laws Taking Effect July 1: Here’s What You Need to Know, Fox 13 (June 18, 2025) https://www.fox13news.com/news/new-florida-laws-taking-effect-july-1-heres-what-you-need-know (reporting on the new laws in Florida including one on the death penalty).
[2] H.B. 903, 2025 Sess. (Fla. 2025).
[3] Id.
[4] See U.S. Const. amend. VIII (stating no US citizen shall be subject to cruel and unusual punishment).
[5] Alison Mollman, Alabama has Executed a Man With Nitrogen Gas Despite Jury’s Life Verdict, Amer. Civ Liberties Union (Feb. 1, 2024) https://www.aclu.org/news/capital-punishment/alabama-has-executed-a-man-with-nitrogen-gas-despite-jurys-life-verdict.
[6] Gloria Oladipo, Nitrogen Gas Execution: How it Works and How it’s Controversial, The Guardian (Jan. 26, 2024) https://www.theguardian.com/us-news/2024/jan/26/what-is-nitrogen-gas-execution-risks.
[7] Id.
[8] Alison Mollman, Alabama has Executed a Man With Nitrogen Gas Despite Jury’s Life Verdict, Amer. Civ Liberties Union (Feb. 1, 2024) https://www.aclu.org/news/capital-punishment/alabama-has-executed-a-man-with-nitrogen-gas-despite-jurys-life-verdict.
[9] Ala. Code § 15-18-82 (2025).
[10] The Associated Press, Alabama Puts Man to Death in the Nation’s Fourth Execution Using Nitrogen Gas, NPR (Feb. 7, 2025) https://www.npr.org/2025/02/07/nx-s1-5289837/alabama-execution-nitrogen.
[11] Smith v. Hamm, 144 S Ct. 414 (2024).
[12] Smith v. Hamm, No. 2:23-cv-656-RAH, 2024 U.S. Dist. LEXIS 5071, at *3.
[13] Kim Chandler, Federal Court Says Alabama Can Carry Out First Nitrogen Gas Execution; Supreme Court Appeal Expected, PBS News (Jan. 24, 2024) https://www.pbs.org/newshour/nation/federal-court-says-alabama-can-carry-out-first-nitrogen-gas-execution-supreme-court-appeal-expected.
[14] See Baze v. Rees, 553 U.S. 35, 50-52 (2008) (developing a three-step process for determining when a method of execution violates the Eighth Amendment: first, when there is a “substantial risk of serious harm”; second, and when “feasible, readily implemented” alternatives exist; finally, a state violates the Eighth Amendment if it fails to adopt such alternatives, unless it has a “legitimate penological justification” for such failure).
[15] Smith v. Hamm, No. 2:23-cv-656-RAH, 2024 U.S. Dist. LEXIS 5071, at *27-28.
[16] Id. at *26-27.
[17] Baze, 553 U.S. at 50.
[18] Id at 53-54.
[19] Id at 50.
[20] Smith v. Hamm, No. 2:23-cv-656-RAH, 2024 U.S. Dist. LEXIS 5071, at *27.
[21] See Baze, 553 U.S. at 50 (stating causing pain does not meet the standard of intolerable risk of serious harm).
[22] See Mollman, supra note 5 (reporting on the first death, Kenneth Smith where it took approximately 22 minutes); see also Ralph Chapoco, Alabama Executes Alan Eugene Miller in Fourth Execution of 2024, Alabama Reflector (Sep. 26, 2024), https://alabamareflector.com/2024/09/26/alabama-executes-alan-eugene-miller-in-fourth-execution-of-2024/ (reporting that Alan Miller shook for two minutes and gasped for air for six minutes); see also Ralph Chapoco, Alabama Executes Carey Dale Grayson for 1994 Murder for Vickie Deblieux, Alabama Reflector (Nov. 21, 2024), https://alabamareflector.com/2024/11/21/alabama-executes-carey-dale-grayson-for-1994-murder-of-vickie-deblieux/ (reporting of Grayson having labored and heavy breathing for ten minutes); see also The Associated Press, supra note 10 (reporting that Frazier was moving his hands and legs and being administered nitrogen for 18 minutes); see also Kim Chandler, Alabama Executes a Man by Nitrogen Gas for the Beating Death of a Woman n 1988, AP News (June 10, 2025), https://apnews.com/article/execution-alabama-nitrogen-gas-1799b231099c2e260bee7f55b97fa31f (reporting that Gregory Hunt shook his hands and legs for ten minutes); see also Kim Chandler, Alabama Executes Man with Nitrogen Gas for 1997 Shooting Death of Store Clerk, AP News (Sep. 25, 2025), https://apnews.com/article/alabama-execution-nitrogen-abbee4a788ad61f5b8d7cfe0d7afe992 (reporting that Geoffrey West was struggling for breath, shaking his head, and foaming at the mouth); see also Hayley Bedard, Alabama Execution Witnesses Report “Violent Thrashing” of Prisoner and More Than 225 “Agonized Breaths” in Nitrogen Gas Execution, Death Penalty Info. Ctr. (Oct. 27, 2025), https://deathpenaltyinfo.org/news/alabama-execution-witnesses-report-violent-thrashing-of-prisoner-and-more-than-225-agonized-breaths-in-nitrogen-gas-execution (reporting that Anthony Boyd’s execution took 40 minutes which included violently thrashing and taking labored breaths).
[23] Boyd v. Hamm, No. 25A457, 2025 U.S. LEXIS 4016, at *3.
[24] Id., at *8-9.
[25] Id., at *8.
[26] Press Release, Special Procedures, United States: UN Experts Alarmed at Prospect of First-Ever Untested Execution by Nitrogen Hypoxia in Alabama, U.N. Press Release SP (Jan. 3, 2024), https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-alarmed-prospect-first-ever-untested-execution.
[27] Id.
[28] Id.
[29] Id.
[30] See The Associated Press, supra note 10.
[31] Bedard, supra note 22.
[32] Id.
[33] See Boyd v. Hamm, No. 25A457, 2025 U.S. LEXIS 4016, at *11.
[34] Smith v. Hamm, No. 2:23-cv-656-RAH, 2024 U.S. Dist. LEXIS 5071, at *65, 69-70; Boyd, No. 25A457, 2025 U.S. LEXIS 4016, at *6.
[35] Id.
[36] See generally, id. (reporting that Anthony Boyd’s execution has been the longest at almost 40 minutes).
[37] See Baze v. Rees, 553 U.S. 35, 50 (2008) (stating something other than general pain will meet this standard).
[38] Boyd v. Hamm, No. 25A457, 2025 U.S. LEXIS 4016, at *8.
[39] See generally, H.B. 903, 2025 Sess. (Fla. 2025) (stating any constitutional method for execution can be used in Florida).
[40] See generally, Smith v. Hamm, No. 2:23-cv-656-RAH, 2024 U.S. Dist. LEXIS 5071, at *1 (stating this form of execution is permittable without acknowledging how much time the inmate would inhale the gas).
[41] Bedard, supra note 22.
[42] Press Release, Special Procedures, supra note 26.