SCOTUS Denies Alabama’s Request To Allow Execution Using Nitrogen Gas

The U.S. Supreme Court on Thursday rejected Alabama’s emergency request to move forward with the scheduled execution of Jeffery Lee, leaving in place lower court rulings that blocked the state from using nitrogen hypoxia.

Alabama had asked the justices to allow Lee’s execution to proceed Thursday night after lower courts found that the state’s planned method was “probably unconstitutional.”

The case placed the high court back at the center of a long-running national fight over capital punishment, state authority, and the constitutional limits of execution methods under the Eighth Amendment.

Alabama Solicitor General A. Barrett Bowdre argued that the lower courts had gone too far in blocking a method approved by the state’s elected lawmakers.

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.”

But shortly after 9 p.m. EDT, the Supreme Court denied Alabama’s request in a brief, unsigned order. As is common on the court’s emergency docket, the justices did not provide an explanation for the decision.

Three conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — indicated they would have granted Alabama’s request and allowed the execution to move forward.

Lee was convicted in the 1998 robbery and killings of a pawn shop owner and employee.

At trial, the jury recommended by a 7-5 vote that Lee be sentenced to life in prison without the possibility of parole. The judge, however, overrode that recommendation and imposed a death sentence.

Lee later challenged Alabama’s use of nitrogen hypoxia. U.S. District Judge Emily Marks initially rejected his Eighth Amendment claim, finding that any discomfort associated with the method did not amount to a constitutional violation.

Marks also noted that “executions presume a risk of some pain.”

On June 8, the U.S. Court of Appeals for the 11th Circuit reversed that ruling and sent the case back to the district court for further review.

The appeals court concluded that “[t]here is … a substantial risk of serious harm” from nitrogen hypoxia. Relying on findings from the district court, the court said the method could involve “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.”

The next day, the district court found that a firing squad, which Lee had proposed as an alternative method, would be a safer alternative because it would result in a painless death.

Marks then blocked Alabama from using nitrogen hypoxia to execute Lee, and the 11th Circuit declined to stay that ruling.

Alabama quickly turned to the Supreme Court, arguing that the lower courts’ decisions threatened to upend the state’s lawful capital punishment system.

Bowdre warned that allowing the rulings 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 Lee claimed the method would cause.

The state argued that any risk associated with nitrogen hypoxia “would amount to no more discomfort than that caused by other constitutional methods of execution.”

Alabama also pushed back on Lee’s proposed alternative, arguing that even if the appeals court were correct that nitrogen hypoxia posed a substantial risk of harm, Lee still could not show that a firing squad was a readily available and legally required substitute under Supreme Court precedent.

Bowdre said the benefits of a firing squad were not “clear and considerable” and argued that implementing that method would be difficult and time-consuming for the state.

Lee’s attorneys urged the justices Thursday afternoon to deny Alabama’s emergency request.

The Supreme Court’s order means Alabama cannot proceed with Lee’s execution using nitrogen hypoxia at this time.

For conservatives who support the rule of law and the rights of states to enforce criminal sentences, the decision raises familiar questions about how far federal courts should go in second-guessing execution procedures approved through the democratic process.

The case also highlights the continuing legal battle over whether states can carry out lawful death sentences without years of procedural delays and last-minute litigation reshaping the terms of punishment long after a jury and court have spoken.