A federal appeals court ruled Monday that Alabama's use of nitrogen gas for executions requires further review to determine if it violates the constitutional ban on cruel and unusual punishment. The decision could impact the state's next scheduled execution, set for Thursday.
The three-judge panel reversed a lower court's May ruling that found the nitrogen method constitutional, sending the case back for additional consideration. The ruling came in a lawsuit filed by death row inmate Jeffery Lee, who is scheduled to be executed Thursday at a south Alabama prison.
Lee was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson during a pawn shop robbery in December. Prosecutors said Lee entered Jimmy's Pawnshop with a sawed-off shotgun and shot both victims.
A jury voted 7-5 for life imprisonment, but a judge overrode that recommendation and sentenced Lee to death. Alabama ended the practice of judicial override in 2017.
The appeals panel expressed concerns about the duration of suffering under the nitrogen hypoxia protocol, noting that the process can take one to three minutes. "Counting to 60 or 180 seconds is not a quick exercise, and constitutionally speaking, that timeframe is intolerable given the suffering that would likely take place," the panel wrote.
The court found that Lee met the first prong of the Supreme Court's test—showing a substantial risk of superadded pain—but sent the case back to determine if a feasible alternative method, such as a firing squad, is available. The state has maintained the method is constitutional.
Opponents of capital punishment celebrated the decision. "For the first time a court has acknowledged what I and so many others have seen with our own eyes.
Nitrogen executions are a unique form of horror," said the Rev. Jeff Hood, who served as spiritual adviser at two nitrogen executions.
Nitrogen has been used in eight executions nationally—seven in Alabama and once in Louisiana. Alabama's last nitrogen execution took more than 30 minutes to complete.
The ruling came hours after a vigil at the Alabama Capitol urging Governor Kay Ivey to commute Lee's sentence to life imprisonment. Alabama Attorney General Steve Marshall opposed clemency, stating, "The people of Alabama have not forgotten Jimmy and Elaine.
I have not forgotten them. Anything short of carrying out the sentence imposed by the court falls short of justice for the victims." The appeals court did not issue a stay of execution but asked the trial judge to consider the feasibility of a firing squad as an alternative method.