A federal judge on Tuesday permanently barred Alabama from executing Jeffrey Lee, 49, by nitrogen hypoxia, finding the state's nitrogen gas protocol violates the Eighth Amendment.
U.S. District Judge Emily Marks issued the ruling and reversed a prior decision in the case after an appeals court on Monday had reversed an earlier ruling by Marks in which she had found the method constitutional.
Lee was scheduled to die by nitrogen hypoxia on Thursday. He has been incarcerated on Alabama's death row for more than two decades after being convicted of a 1998 double murder. Prosecutors said he shot and killed Jimmy Ellis, a store owner, and Elaine Thompson, an employee, while attempting to rob the establishment, court filings show. Nitrogen hypoxia is carried out by forcing a condemned inmate to breathe pure nitrogen through a gas mask until they suffocate from lack of oxygen.
The court heard testimony from experts and lay witnesses during an April bench trial that was the first to weigh the constitutionality of Alabama's nitrogen hypoxia protocol and found that inmates executed by nitrogen gas likely experience "severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort" for at least one to three minutes before asphyxiation occurs. "Lee has shown by a preponderance of evidence that the Protocol constitutes cruel and unusual punishment," Marks wrote. The appeals court's opinion said, "There is, in other words, a substantial risk of serious harm. The risk is not conjectural, speculative, or doubtful" and added, "Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would take place under Alabama's nitrogen protocol."
Lee proposed execution by firing squad as an alternative. Marks said the firing squad "is feasible, readily implemented, and significantly reduces the substantial risk of serious harm," and found the state had "failed to articulate a legitimate penological reason" for refusing to adopt it. Execution by firing squad is not technically authorized in Alabama, where death sentences can be carried out by lethal injection, nitrogen hypoxia or, under some circumstances, electrocution.
Alabama Attorney General Steve Marshall's office plans to appeal Marks' decision, court filings show. Lee would have been the ninth person in the U.S. executed by nitrogen hypoxia and the eighth in Alabama; Louisiana has also carried out one execution this way. The constitutionality of Alabama's nitrogen gas execution protocol will likely go before the U.S. Supreme Court next, which has never found any method of capital punishment to be unconstitutional.