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

The state of Alabama is appealing a ruling on nitrogen gas execution. AP correspondent Mike Hempen reports.

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.

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.