Appeals court agrees Alabama’s nitrogen execution method ‘likely unconstitutional’

Alabama is preparing for a high-stakes legal showdown at the U.S. Supreme Court as the state attempts to defend its controversial nitrogen gas execution method. This move follows a late Wednesday ruling from the U.S. 11th Circuit Court of Appeals, which declared the practice likely unconstitutional.

In a pointed opinion, two judges from the appellate court noted that the legal equities do not favor the state, stating, "The equities, we believe, favor Mr. Lee. And even if they do not favor Mr. Lee, they do not favor (Alabama)."

The ruling directly impacts the case of Jeffery Lee, who was scheduled for execution by nitrogen on Thursday evening. His case has seen a whirlwind of activity, with three conflicting court orders issued in just three days. While Wednesday’s decision prevents Alabama from proceeding with the gas execution for now, the ultimate fate of the protocol rests with the Supreme Court.

The Debate Over Alternatives

Attorneys for Lee contend that Alabama’s nitrogen protocol inflicts extreme physical and mental anguish. As a more humane alternative, they have proposed the use of a firing squad. Currently, Alabama lacks both the state law and the necessary operational processes to carry out such a procedure.

The 11th Circuit judges disagreed with the state's assertion that a firing squad would be too difficult to implement. They noted the state failed to demonstrate that retrofitting an execution chamber or assembling a team of five marksmen would be unfeasible, ultimately concluding that a firing squad represents a "significantly less painful" method compared to nitrogen hypoxia.

A Reversal in the Lower Courts

The appellate ruling mirrors a decision from Monday, where the same court criticized U.S. District Judge Emily Marks for failing to adequately consider Lee’s alternative execution proposal. Following that reversal, Judge Marks issued a new ruling Tuesday declaring the nitrogen method unconstitutional in this instance.

"Lee has shown that his proposed firing squad alternative significantly reduces a substantial risk of severe pain as compared to nitrogen hypoxia," Marks wrote. "The result is that the State of Alabama cannot execute Lee by nitrogen hypoxia— no more, no less."

Background on the Case

Lee, 49, has been on death row for 25 years following his conviction for the 1998 double murder of Jimmy Ellis and Elaine Thompson in Orrville. His case is unique because his initial sentence of life without parole was overturned by a judge through judicial override, a practice since banned by Governor Kay Ivey.

As of now, neither the Alabama Attorney General’s Office nor the Alabama Department of Corrections has confirmed if they intend to pursue execution via lethal injection. While the execution is officially slated for 6 p.m. Thursday, the state retains until 6 a.m. Friday to carry out the sentence.

The state has "vehemently" argued that the legal challenges are merely stalling tactics. In court filings, assistant attorneys general suggested that any method of execution carries inherent discomfort, noting, "This lawsuit, like his 2016 lethal injection challenge, is merely Lee’s attempt to once more avoid his death sentence from 2000."

The appellate court rejected those arguments, emphasizing that the focus must remain on constitutional standards. "The public, the State, and Mr. Lee all have an interest in ensuring that executions are carried out consistently with the Constitution," the judges concluded.