The Supreme Court rejected Alabama’s attempt to execute Jeffery Lee with nitrogen gas after lower courts stopped the state from executing him with that method.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to side with the state, according to the court’s unexplained order on Thursday night denying the state’s emergency application.
On Tuesday, a Trump-appointed judge in Alabama blocked the state from executing Lee under its nitrogen-hypoxia protocol. U.S. District Judge Emily Marks found that Lee proved the state’s method violates the Eighth Amendment’s ban on cruel and unusual punishment.
She emphasized that although she was issuing a permanent injunction against the nitrogen method, she wasn’t banning the state from executing Lee. She said the record showed his alternative proposal of the firing squad “significantly reduces a substantial risk of severe pain as compared to nitrogen-hypoxia.”
Under precedent adopted by the Supreme Court’s GOP-appointed majority, an inmate who challenges an execution method as unconstitutional must propose an alternative method that is feasible, readily implemented and significantly reduces a substantial risk of severe pain.
Having scheduled Lee’s execution for Thursday, Alabama officials moved to lift Marks’ injunction in an effort to proceed as planned. Procedurally, they first had to ask Marks herself for relief. In their motion to the judge, they said she downplayed the risks of the firing squad, as well as the state’s concern about finding willing and able executioners for the shooting method.
State officials further said the fact that they scheduled Lee’s execution for Thursday “should have sunk his claim.” They said that “however easy or hard it would be to implement a firing squad in the abstract, there’s no support for the view that it could be done two days from the Court’s decision that it satisfies the Eighth Amendment test.”
Marks rejected the motion to lift her injunction, noting that the state’s urgent motion did “little more than repeat the arguments it made previously,” which she also had rejected. She added that the state had no right to complain about the timing because it was the state that set Lee’s execution while litigation was pending.
A divided three-judge panel on the U.S. Court of Appeals for the 11th Circuit declined to disturb Marks’ ruling. The panel’s majority recounted that a judge’s permanent injunction like the one Marks issued is entitled to deference and can be overturned only if the judge abused her discretion. With that in mind, the majority said her findings were “amply supported by the evidence presented.”
And noting that courts reviewing motions for urgent relief consider the “irreparable harm” at stake, the majority observed: “It goes without saying that Mr. Lee would suffer irreparable harm if he were executed pursuant to a method that the district court has found unconstitutional.”
On the other hand, the majority said the state’s preferred Thursday execution timing “is not a magical date” and that “the injury to the State caused by a delay would not be irreparable because the district court’s injunction allows it to execute Mr. Lee by any other authorized method (including lethal injection or the electric chair).”
Trump-appointed Judge Robert Luck was the panel dissenter. He began by recalling that Lee was sentenced to die for robbing and murdering Jimmy Ellis and Elaine Thompson 26 years ago. “Unlike his victims, Lee was allowed to choose his method of execution,” he added, referring to Lee’s initial choice of nitrogen hypoxia as an alternative to lethal injection during a previous round of litigation.