A three-judge panel of the 11th Circuit Court of Appeals ruled late on Wednesday to uphold a lower court's decision to block the Thursday nitrogen hypoxia execution of Jeffery James Lee, 49, who was sentenced for the 1998 murder of Jimmy Ellis and Elaine Thompson in an attempted robbery.
The panel, made up of U.S. Circuit Judges Adalberto Jordan, Robert Luck and Embry Kidd, ruled on Wednesday evening, denying the State's request to stay an injunction on the execution from earlier this week.
On Tuesday, U.S. District Judge Emily Marks barred the State from carrying out the planned execution, holding that it violated the Eighth Amendment of the U.S. Constitution. She also stated that Lee's preferred method of execution by firing squad would be feasible for the State to accommodate.
"The State can readily obtain rifles, ammunition, and other materials necessary to carry out a firing squad execution," she wrote. "Additionally, the State would be able to modify space at Holman to carry out executions by firing squad. The State is also able to source and train volunteers willing to carry out such an execution."
The State swiftly appealed the District Court's decision, accusing Lee of obfuscating in an attempt to delay his execution by having the District Court require an execution method that is currently not approved by the State, after having previously selected the method over lethal injection.
It also rejected the assertion that nitrogen hypoxia violated the Eighth Amendment, noting it was not significantly more painful than a firing squad.
Nitrogen hypoxia has been used seven times in Alabama, and each time was successful. Witnesses described the inmates experiencing distress and pain, and a medical expert testified that the affected person experiences "air hunger," also called dyspnea, in the process.
The 11th Circuit panel found in its ruling that the State did not present a sufficient case to stay the district court ruling.
"The equities, we believe, favor Mr. Lee. And even if they do not favor Mr. Lee, they do not favor the Commissioner," The 11th Circuit ruling reads.
The Court accepted the premise that nitrogen hypoxia would likely violate the Eighth Amendment. It also found that "execution by firing squad significantly reduces the risk of severe harm posed by execution by nitrogen hypoxia."
"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," the ruling continues. "To him, loss of life is not compensable by legal remedies like damages."
Luck, a Trump-appointed judge, wrote a dissenting opinion from the majority. President Barack Obama appointed Jordan, and President Joe Biden appointed Adalberto.
In his dissent, Luck stated that he would have granted the stay, saying the Court erred by granting Lee's appeal to the use of a firing squad, suggesting Lee's last-minute pitch was an intentional legal ploy.
"Twenty-six years ago, Jeffery Lee was sentenced to die for robbing and murdering Jimmy Ellis and Elaine Thompson," Luck wrote. "Unlike his victims, Lee was allowed to choose his method of execution. Eight years ago, he did that by electing nitrogen hypoxia. His execution is fixed for tomorrow. Or it was. Two days before Lee's sentence was finally set to be carried out, the district court declared that the State's nitrogen hypoxia protocol facially violated the Eighth Amendment and enjoined the State from executing Lee using the protocol."
He continued, "[D]espite the fact that Alabama has two other methods of execution that are constitutionally sound, Lee chose as an alternative method an execution protocol that Alabama does not offer. If Lee was concerned about the nitrogen hypoxia protocol and genuinely wanted a constitutionally assured method of execution, he would have chosen one of the two authorized in Alabama. But he didn't. He sought an alternative that only two states have used over the last 100 years and sought an injunction that barred any method other than one Alabama doesn't authorize."
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