The U.S. Supreme Court Thursday upheld two lower court rulings that found Alabama’s nitrogen gas execution protocol unconstitutional, ending for now a short but intense legal battle over Alabama’s execution methods; what constituted an acceptable level of suffering in an execution and the state’s obligations to offer alternative methods that could be less painful.
In a brief, two-sentence order, the court denied a request from the Alabama Attorney General’s Office to stay a district court’s ruling banning nitrogen gas executions and allow the state to put Jeffery Lee to death Thursday evening. There were no opinions attached to the ruling. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.
Lee, 49, was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in Orrville in Dallas County. The trial jury voted 7-5 to sentence Lee to life in prison, but the trial judge imposed a death sentence.
Alabama Gov. Kay Ivey said in a statement Thursday evening that she was “disappointed” in the ruling, but was “committed to ensuring that justice is ultimately served for (Lee’s) victims.”
Alabama Attorney General Steve Marshall called the ruling “a miscarriage of justice” for Ellis and Thompson in a statement Thursday.
“I want their families to know that we will never stop seeking justice for Jimmy and Elaine,” the statement said. “The state is prepared to do whatever is necessary to see Mr. Lee’s lawful sentence carried out.”
Lee’s attorneys said in a statement Thursday that the Supreme Court “refused Alabama’s demand to execute Jeffery Lee tonight.”
“His jury voted for life,” the statement said. “Two courts ruled the method unconstitutional. Today, the Constitution prevailed. Now Gov. Ivey can finish what the jury started: restore the jury’s verdict of life without parole.”
Legal arguments
Since 2024, Alabama has executed seven men using nitrogen gas. Witnesses to the executions have often reported inmates convulsing and gasping for breath during the procedure.
Lee argued that the state’s nitrogen gas protocol violated his Eighth Amendment right against cruel and unusual punishment, and said he should be executed by firing squad, which his attorneys argued was feasible and a less painful manner of execution.
U.S. District Court Judge Emily Marks ruled in May that those executed under Alabama’s nitrogen gas protocol are exposed to “air hunger” and would experience pain for one to three minutes, but said that did not rise to the level that would count as cruel and unusual punishment.
A three-judge panel of the U.S. 11th Circuit of Appeals reversed the ruling on Monday, saying air hunger went “over and above the mental distress that typically accompanies the knowledge of impending death by execution.” The judges sent the case back to federal district court to evaluate whether executing by firing squad is a reasonable alternative.
Marks ruled that death by firing squad can be readily implemented despite objections from the Alabama Attorney General’s Office and blocked the state from using the execution method. The same three-judge panel affirmed the decision on Wednesday when the AG’s Office appealed.
The Attorney General’s Office then appealed that decision to the U.S. Supreme Court. State attorneys argued that courts in previous executions upheld nitrogen gas executions; questioned testimony from a defense expert who said a firing squad execution would be less painful, and argued that the state could not create a facility for firing squad executions or train a firing squad in a reasonable amount of time.
“If that ruling stands, it would be unprecedented in American history,” the appeal said. “Not only does it portend the first-ever permanent ban on a legislatively enacted method, but it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment. While a risk of emotional distress might be relevant, the notion that a generally physically painless method nonetheless involves a level of ‘severe pain’ akin to barbaric torture is outlandish.”
Lee’s attorneys said the state did not challenge its experts during the trial phase and witness testimony on prior nitrogen gas executions. They argued shooting Lee in the heart would lead to death within three to five seconds, and also cited testimony from former Alabama Corrections Commissioner John Hamm, who said the state could implement firing squad executions if so directed.
“Alabama has modified its execution statute and trained personnel to accommodate new methods before,” the brief said. “It can do so again. That it may take time and resources to implement such a protocol does not make (a) firing squad infeasible either.”
Those who opposed Lee’s execution praised the reprieve.
Rev. Jeff Hood, who acts as a spiritual advisor to Alabama’s death row inmates, said in a statement that the ruling was “the beginning of the end of the most horrific execution method this country has ever devised.”
“Tonight, righteousness has shown up,” the statement said. “It always does. We will not rest until it catches up with every potential nitrogen execution in every state in this country.”
Alabama Sen. Robert Stewart, D-Selma, called the ruling “a win for human rights.”
“Today, that verdict finally mattered,” Stewart said in a statement. “Now Governor Ivey can finish the job: commute his sentence, honor the jury, and show that Alabama listens to its people.”
JaTaune Bosby Gilchrist, executive director of the ACLU of Alabama, said Marks “made the right decision to intervene.”
“Despite that decision, the State of Alabama continues to pursue Jeffrey Lee’s execution even though no jury ever sentenced him to death,” the statement said. “Judges in Alabama are no longer allowed to overrule a jury’s sentence in capital cases, and we urge the state to restore the jury’s original sentence of life without parole.”
Alabama Reflector is a nonprofit newsroom in Montgomery.
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