Alabama asks US Supreme Court to allow Thursday's blocked nitrogen gas execution

MONTGOMERY, Ala. (AP) — Alabama is waging a last-minute legal fight to execute a man with nitrogen gas on 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. Thursday. However, a federal judge on Tuesday ruled 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.

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.

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.

Lee’s attorneys said Alabama is attempting to move forward with an execution method that courts have found unconstitutional. His supporters have urged Alabama Gov. Kay Ivey to commute his sentence to life imprisonment, which is the sentence that jurors at his trial had recommended.

“Alabama Attorney General Steve Marshall wants to execute Jeffery Lee under a death sentence the jury rejected using a nitrogen gas method that two federal courts have ruled unconstitutional. This execution is simply too flawed to move forward,” Lee’s lawyers said in a Wednesday statement.

“We remain hopeful that Governor Ivey will intervene,” they added.

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.