Alabama filed an emergency request with the U.S. Supreme Court on Tuesday, asking the justices to vacate a federal judge's order that blocked the state from executing death row inmate Charles Lee Burton by nitrogen hypoxia. The execution had been scheduled for Thursday. If the Court does not act in time, the state's death warrant will expire, and Burton will remain on death row while litigation continues.
The case marks the latest collision between Alabama's push to use nitrogen gas as an execution method and federal courts that have questioned whether the procedure inflicts unconstitutional suffering. It also tests how far the Supreme Court will go to intervene on an emergency basis in capital cases, a question that has divided the justices for years.
Burton was convicted in 1997 for the murder of Thomasene Thomas, a 53-year-old grocery store owner in Sumter County, Alabama. Prosecutors said Burton shot Thomas during a robbery at her store. A jury convicted him of capital murder and recommended a death sentence, which the trial judge imposed. Burton has been on Alabama's death row for more than 27 years, the Associated Press reported.
His appeals through state courts were denied. Burton later filed federal habeas corpus petitions, which also failed. The case appeared to be moving toward a final execution date when Alabama scheduled the nitrogen gas procedure for Thursday, June 19, 2025.
U.S. District Judge R. Austin Huffaker Jr. of the Middle District of Alabama issued a permanent injunction on June 6 barring the state from executing Burton using nitrogen hypoxia. Huffaker ruled after a trial in which Burton's attorneys presented evidence that the nitrogen gas protocol, as Alabama planned to apply it to Burton specifically, posed a substantial risk of serious harm in violation of the Eighth Amendment's ban on cruel and unusual punishment.
Huffaker's ruling focused on Burton's particular medical history. Burton's legal team argued that he suffers from chronic obstructive pulmonary disease and other respiratory conditions that could cause the nitrogen gas procedure to go wrong. The judge found that Burton had shown a likelihood that the protocol would not work as intended given his health issues, creating an unacceptable constitutional risk.
Alabama had previously carried out two nitrogen gas executions. The state used the method on Kenneth Smith in January 2024 and on Alan Miller in September 2024. Both executions drew scrutiny from anti-death-penalty groups, but Alabama officials maintained that the procedure worked as designed. The state argued before Judge Huffaker that its protocol was adequate and that Burton's medical conditions did not present the dangers his lawyers claimed.
A federal judge had previously blocked a nitrogen gas execution for another Alabama death row inmate, establishing a pattern of judicial resistance to the method in the lower courts.
After Judge Huffaker issued the injunction, Alabama immediately appealed to the Eleventh Circuit Court of Appeals. The state asked for an emergency stay of the injunction so the Thursday execution could proceed. The Eleventh Circuit denied that request on Monday, June 16, in a brief order that did not include a detailed opinion.
Alabama Attorney General Steve Marshall then went directly to the Supreme Court. In the emergency application filed Tuesday, Marshall asked the justices to vacate the district court's injunction or, in the alternative, to stay it pending the state's full appeal. Marshall argued that Judge Huffaker applied the wrong legal standard and that the Eighth Amendment does not require states to guarantee a painless execution.
Marshall's filing contended that Burton had not met the burden set by the Supreme Court's prior decisions in capital punishment method cases. Under the Court's 2019 ruling in Bucklew v. Precythe, a death row inmate challenging an execution method must show that an alternative method is available, feasible, and would significantly reduce the risk of serious pain. Marshall argued Burton failed to identify a viable alternative method, which should have been fatal to his claim.
"The district court's injunction rests on legal errors that this Court's precedents foreclose, and it should not be permitted to stand while Alabama's execution warrant remains active."
That language, drawn from the state's filing, captures the core of Alabama's position: the clock is ticking, the law favors the state, and the lower courts got it wrong.
Burton's attorneys, led by the Federal Defenders for the Middle District of Alabama, filed an opposition brief urging the Supreme Court to deny the state's request. They argued that the district court conducted a full trial, heard testimony from medical experts on both sides, and made factual findings that are entitled to deference on appeal.
The defense team emphasized Burton's respiratory conditions. They presented evidence at trial that Burton's compromised lung function could cause him to inhale nitrogen unevenly, potentially leading to a prolonged and painful process rather than the rapid loss of consciousness Alabama's protocol assumes. Defense experts testified that Burton could experience seizures, choking, or extended periods of awareness during the procedure.
"Mr. Burton's undisputed medical conditions create a substantial risk that nitrogen hypoxia will not render him unconscious before he experiences constitutionally intolerable pain and suffering."
Burton's lawyers also pushed back on the Bucklew alternative-method requirement. They argued that Burton did identify lethal injection as a readily available alternative, since Alabama maintains a lethal injection protocol and has used it in other executions. The state countered that Burton had previously elected nitrogen hypoxia over lethal injection and should not be allowed to reverse that choice to manufacture an Eighth Amendment claim.
The justices face several possible paths. They could grant Alabama's request outright, vacating the injunction and allowing the Thursday execution to proceed. They could deny the request, leaving the injunction in place and effectively running out the clock on the death warrant. They could also issue a temporary administrative stay to give themselves more time to consider the matter, though that too might push past the warrant's expiration.
The Court has shown a willingness in recent terms to intervene in last-minute execution disputes. In the Smith nitrogen execution in January 2024, the justices allowed the procedure to go forward over dissents from Justices Sotomayor, Kagan, and Jackson. The Court's conservative majority has generally been skeptical of eleventh-hour stays in capital cases, viewing them as a form of delay that undermines the finality of criminal judgments.
Recent Supreme Court activity in death penalty cases has drawn intense public attention. The Court's recent 5-4 decision reversing a Mississippi death sentence over racial bias in jury selection showed that capital punishment cases continue to produce sharp divisions among the justices, even when the legal questions differ from those in Burton's case.
Alabama adopted nitrogen hypoxia as an execution method in 2018, becoming the first state to authorize it. The concept is straightforward: the inmate breathes pure nitrogen through a mask, displacing oxygen and causing death by hypoxia. Proponents, including Alabama corrections officials, have described it as humane because nitrogen is inert and the loss of consciousness is expected to occur rapidly.
Critics have challenged that description. After Kenneth Smith's execution in January 2024, witnesses reported that Smith appeared to remain conscious for several minutes and that his body convulsed on the gurney. Alabama officials disputed those characterizations, saying the execution proceeded according to protocol and that involuntary muscle movements were expected and did not indicate consciousness or suffering.
The Smith execution was the first known use of nitrogen gas to carry out a death sentence anywhere in the world. The Miller execution in September 2024 drew less public attention but renewed questions about whether the mask seal could be maintained throughout the procedure, particularly for inmates with facial hair, unusual anatomy, or respiratory conditions.
Burton's case sharpens that question. His lawyers argued that his COPD and related conditions mean his lungs cannot efficiently exchange gases, making the nitrogen protocol unreliable for him specifically. The district court credited that testimony. Alabama's position is that the protocol accounts for individual variation and that the Eighth Amendment does not require medical perfection.
Alabama's death warrant for Burton has a specific expiration window. If the Supreme Court does not act before the warrant lapses, the state would need to obtain a new warrant from the Alabama Supreme Court before scheduling another execution date. That process could take weeks or months, and the underlying litigation over the injunction would continue in the Eleventh Circuit regardless.
The Eleventh Circuit has not yet scheduled briefing or argument on the merits of Alabama's appeal of Judge Huffaker's injunction. A full appellate review could take months. If the Supreme Court denies the emergency application, the practical effect would be to delay Burton's execution indefinitely while the legal challenge plays out.
For Alabama, that delay represents a broader threat to its nitrogen gas program. If the Eleventh Circuit upholds the injunction on the merits, it could establish a precedent that inmates with certain medical conditions cannot be executed by nitrogen hypoxia. That would force the state to evaluate each death row inmate's health before choosing a method, a process Alabama has resisted as unworkable.
Active death penalty prosecutions across the country continue to generate complex legal battles. A defense team in another capital case recently moved to seal evidence and disqualify prosecutors ahead of a death penalty hearing, illustrating how procedural fights in capital cases can delay proceedings for years.
Burton's case arrives at the Supreme Court during a period of heightened tension between state governments and federal courts over criminal justice. Several states have moved to expand execution methods in recent years, with some adopting firing squads and others revisiting the electric chair. Alabama's nitrogen gas program has been the most closely watched experiment in execution technology in decades.
The legal standard governing execution method challenges remains the one the Court set in Glossip v. Gross (2015) and refined in Bucklew v. Precythe (2019). Under that framework, an inmate must demonstrate that the challenged method presents a substantial risk of serious harm and that a known and available alternative would significantly reduce that risk. The burden falls on the inmate, and courts have generally applied it strictly.
Judge Huffaker's ruling that Burton met that burden, at least on the facts of his specific medical situation, is unusual. Most execution method challenges fail at the district court level. Alabama's argument on appeal is that Huffaker's factual findings were clearly erroneous and that his legal analysis departed from binding Supreme Court precedent.
The tensions surrounding federal court intervention in state proceedings have become a recurring theme. Usha Vance recently called for respect toward the Supreme Court and federal judges amid public friction over controversial rulings, a sentiment that cuts in multiple directions when the courts block a state's chosen method of carrying out a lawful death sentence.
As of Tuesday evening, the Supreme Court had not acted on Alabama's emergency application. The justices could rule at any time, including with a brief order that offers little or no reasoning. In past execution disputes, the Court has sometimes issued one-line orders granting or denying stays, with dissenting justices writing separately to explain their views.
Burton remains on death row at Holman Correctional Facility in Atmore, Alabama. He has been there since 1997. Thomasene Thomas's family has waited nearly three decades for the sentence to be carried out.
High-profile state criminal cases often follow winding procedural paths. The assignment of a new judge to the Alex Murdaugh murder retrial after South Carolina's supreme court tossed his conviction is a reminder that finality in the criminal justice system is never guaranteed, even after a jury has spoken.
When a lawful death sentence sits in legal limbo for 28 years, the question stops being whether the method is painless enough and starts being whether the system has the will to enforce its own judgments.
