Updated on June 11 at 9:28 p.m.
Alabama came to the Supreme Court on Thursday morning, asking the justices to allow the execution of Jeffery Lee to proceed as scheduled on Thursday night. The lower courts have barred the state from using nitrogen hypoxia to execute Lee, calling that method – in which a mask is placed over the prisoner’s face and he breathes nitrogen until he passes out and then dies because of the lack of oxygen – “likely unconstitutional.” But Alabama’s solicitor general, A. Barrett Bowdre, told the justices that “the risk of ‘breathing difficulty or breathing discomfort’ from nitrogen hypoxia does not rise to the level of a severe pain that violates the” Eighth Amendment’s ban on cruel and unusual punishment.
In a brief, unsigned order sent to reporters shortly after 9 p.m. EDT, the court turned down Alabama’s request to allow the execution to proceed as scheduled. As is often the case with orders on its emergency docket, the court did not provide any explanation for its decision. Three justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – indicated that they would have granted the state’s request.
Lee was convicted of the 1998 robbery and murders of a pawn shop owner and employee. The jury at Lee’s trial recommended, by a vote of 7-5, to sentence him to life in prison without the possibility of parole, but the judge at Lee’s trial overrode that recommendation and sentenced Lee to death.
Lee filed his challenge to the state’s use of nitrogen hypoxia last year. U.S. District Judge Emily Marks initially rejected his Eighth Amendment claim, writing that any discomfort from the use of nitrogen hypoxia does not violate the amendment. She suggested that “executions presume a risk of some pain.”
On June 8, the U.S. Court of Appeals for the 11th Circuit reversed Marks’ decision and sent the case back for her to take another look. It reasoned that “[t]here is … a substantial risk of serious harm” from nitrogen hypoxia because the use of that method, based on findings by the district court, will lead to “one to three minutes of ‘severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort.’” “Such suffering,” the court of appeals concluded, “is over and above the mental distress that typically accompanies the knowledge of impending death by execution.”
One day later, the district court determined that a firing squad, which Lee proposed as an alternative execution method, would be a safer alternative to nitrogen hypoxia because it produces a painless death. Marks prohibited the state from using nitrogen hypoxia to execute Lee, and the court of appeals declined to put that decision on hold.
Alabama came to the Supreme Court shortly thereafter, asking the justices to intervene. Bowdre argued that allowing the lower courts’ decisions to stand “would be unprecedented in American history. Not only does it portend the first-ever permanent ban on a legislatively enacted method” of execution, “but it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment” by relying on the emotional distress that Lee alleges nitrogen hypoxia will cause.
In reality, the state stressed, any risks from nitrogen hypoxia “would amount to no more discomfort than that caused by other constitutional methods of execution.” But even if the court of appeals were correct “that nitrogen hypoxia presents a substantial risk of harm,” Lee cannot show that the firing squad is the kind of readily available alternative required by the Supreme Court’s cases when challenging a method of execution. The firing squad’s “advantages are not ‘clear and considerable,’” Bowdre contended, and it would be a difficult and time-consuming method of execution for the state to implement.
In a filing submitted on Thursday afternoon, Lee’s lawyers urged the justices to deny the state’s request. His lead counsel, Paige Sharpe, argued that the order prohibiting the state from using nitrogen hypoxia “can and should be reviewed through the ordinary appellate process. What cannot be corrected—what no subsequent ruling can undo—is an execution by unconstitutional means, carried out before the appellate process concludes.”
Lee’s legal team further argued that the district court’s order permanently barring the state from using nitrogen hypoxia was based on a “full three-day bench trial on the merits,” which included 11 witnesses “as well as hundreds of exhibits totaling thousands of pages.” Although the state framed its filing in the Supreme Court as a request to pause the lower court’s ruling, his lawyers wrote, “the relief it seeks, if obtained, would be permanent.” And the state has “not cited a single case in which this Court has intervened in a capital case in such an extraordinary way.”
Lee also pushed back against the state’s argument that the risks of discomfort from nitrogen hypoxia are similar to those from other methods of execution that the Constitution permits. “When carried out correctly,” he said, “electrocution, lethal injection, and hanging involve little to no pain.” “Execution by nitrogen asphyxiation is different,” he continued. “[T]he suffering is not the result of the execution having gone awry, but when the execution works exactly as designed.”
Moreover, Lee added, there is no merit to Alabama’s contention that it is not feasible to adopt the firing squad as a method of execution. “Alabama has modified its execution statute and trained personnel to accommodate new methods before. It can do so again. That it may take time and resources to implement such a protocol does not make firing squad infeasible either.”
Stephen Vladeck, a Georgetown University law professor, filed a “friend of the court” brief in which he urged the justices to deny the state’s request. Vladeck argued, like Lee, that Alabama is asking the court to lift a permanent, rather than temporary, ban on the use of nitrogen hypoxia. As a result, he said, Alabama’s filing as a practical matter asks the justices to “set aside a final judgment on the merits and clear the way for an execution. That is tantamount to a request for summary reversal, which … properly” should be treated as a request for review of the lower court’s decision, rather than for emergency relief, and which is subject to a significantly more stringent standard than Alabama is invoking.
As a result of Thursday’s order from the court, Alabama will continue to be barred from executing Lee using nitrogen hypoxia.
