ATMORE, Ala. — Alabama is waging a last-minute legal fight to execute a man with nitrogen gas Thursday night, asking the U.S. Supreme Court to set aside a judge’s finding that the method violates the Constitution’s ban on cruel and unusual punishment.
Jeffery Lee, 49, is scheduled to be executed at 6 p.m. However a federal judge ruled Tuesday that nitrogen executions are unconstitutional and blocked the state from using the method to put Lee to death. The state filed an appeal Thursday asking the Supreme Court to set aside the ruling and allow the execution.
“If that ruling stands, it would be unprecedented in American history. 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,” lawyers with the Alabama Attorney General’s Office wrote. The Supreme Court has never ruled that a state’s execution method violates the Constitution.
Lee’s lawyers asked the high court to keep the execution on hold, saying in a response that Alabama is asking it to intervene at the eleventh hour “to allow an execution that has been found unconstitutional to proceed.”
The case has put a spotlight on the nitrogen execution method and the sharp disagreements over its use.
The execution method involves strapping a respirator to the person’s face and replacing breathable air with pure nitrogen gas, causing death from a lack of oxygen. Nitrogen has been used in eight executions in the United States - seven in Alabama and one in Louisiana. Lee was scheduled to be the ninth person put the death by nitrogen.
PHOTOS: Alabama asks US Supreme Court to allow Thursday's blocked nitrogen gas execution
U.S. District Judge Emily Marks ruled Tuesday, after an appeals court reversed her initial finding that the method was constitutional, that Lee had shown by a “preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
The 11th U.S. Circuit Court of Appeals, in a 2-1 decision Wednesday night, rejected Alabama’s request to stay the ruling. The court earlier said the three minutes that it could take for an inmate to lose awareness is an “intolerable” time frame, “given the suffering that would likely take place under Alabama’s nitrogen hypoxia protocol.”
During the previous Alabama nitrogen executions, the inmates shook, pulled at the restraints and exhibited labored breathing. During the state’s last execution by nitrogen gas, 30 minutes elapsed between Anthony Boyd exhibiting signs of being impacted by the gas and state officials closing the curtain to the viewing room to signal the execution was complete.
The state has maintained that the method is constitutional and causes no more suffering than other execution methods.
A jury convicted Lee of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson while robbing a pawnshop on Dec. 12, 1998. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off shotgun and shot Ellis, the owner of the store, and Thompson, a store employee.
A jury voted 7-5 that Lee should receive a sentence of life imprisonment. However, a judge overrode that recommendation and sentenced Lee to death. Alabama in 2017 ended the practice of judicial override and no longer allows a judge to disregard a jury’s sentencing decision in death penalty cases.
Bestselling author John Grisham called on Gov. Kay Ivey to honor the jury’s decision and commute Lee’s sentence to life without parole.
“The practice of a judge overriding a jury was declared unconstitutional and so indefensible that Alabama itself abolished it in 2017,” Grisham said in a statement. “Jeffery Lee’s jury made its decision, the Alabama Legislature later agreed that juries, not judges, should decide life or death sentences.”
Marks did not block the state from using its other authorized execution methods, lethal injection and the electric chair. However, it is unclear if the state could swiftly change the method.
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