A federal judge has permanently stopped Alabama from carrying out an execution using nitrogen gas, determining the technique violates constitutional protections against cruel and unusual punishment.
U.S. District Judge Emily C. Marks made the ruling on Tuesday, one day following an appeals court decision that overturned her previous determination finding the method constitutional.
The judge’s order permanently prevents the state from executing Jeffery Lee using nitrogen gas. Lee had been scheduled for execution on Thursday at an Alabama correctional facility.
A representative for Alabama Attorney General Steve Marshall stated the state is examining the ruling and weighing potential next moves, including filing an appeal. The matter will likely reach the U.S. Supreme Court, which has previously allowed nitrogen executions to move forward.
A representative for Lee’s attorneys indicated they had no immediate statement.
In her 26-page decision, Marks acknowledged that litigation remains constant in capital punishment cases.
“Were Alabama to adopt firing squad as a method of execution, that method would likely be challenged as well. Indeed, there is likely no method — no matter how humane — that would be immune to constitutional challenge. But the Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality,” Marks wrote.
The judge pointed out that Alabama has authorized two additional execution methods: lethal injection and the electric chair. She determined Lee is “not entitled to an injunction barring the State from executing him using one of those methods.”
Marks also determined the state could implement Lee’s preferred alternative method, a firing squad. Inmates who challenge execution methods must propose an alternative approach.
“The State can readily obtain rifles, ammunition, and other materials necessary to carry out a firing squad execution. Additionally, the State would be able to modify space at Holman to carry out executions by firing squad. The State is also able to source and train volunteers willing to carry out such an execution,” Marks wrote.
Lee is held at Holman Correctional Facility in Atmore. He received convictions on two capital murder charges for the deaths of Jimmy Ellis and Elaine Thompson during a pawnshop robbery on Dec. 12, 1998. Prosecutors stated Lee entered Jimmy’s Pawnshop carrying a sawed-off shotgun and fatally shot Ellis, the shop’s owner, and Thompson, who worked at the store.
Jurors voted 7-5 to sentence Lee to life in prison. A judge, however, overruled that recommendation and imposed the death penalty. Alabama eliminated the judicial override practice in 2017 and no longer permits judges to disregard jury sentencing recommendations in capital cases.
