The U.S. Supreme Court has declined to let Alabama carry out the execution of a convicted double murderer by nitrogen hypoxia. A firing squad now appears to be the only remaining option available to the State, though Alabama law does not currently authorize that method.
Alabama currently has three approved methods of execution: lethal injection, nitrogen hypoxia and electrocution, which has not been used in nearly 25 years.
Last week, the nitrogen hypoxia execution of Jeffery Lee, 49, was called off after a late-night decision upholding an earlier ruling by a district court and the 11th Circuit Court of Appeals.
SEE: SCOTUS halts execution of convicted Alabama double-murderer in last-minute decision
U.S. District Judge Emily Marks barred the State from carrying out the planned execution, holding that nitrogen hypoxia violated the 8th Amendment of the U.S. Constitution. She also stated that Lee's preferred method of execution by firing squad would be feasible to accommodate.
Lee initially fought his execution by lethal injection, citing a desire to die by nitrogen hypoxia, which was not allowed by the State at that time. After the state approved the method and successfully carried it out seven times, Lee's lawyers objected, now stating that he preferred a firing squad, citing a protocol like Utah's.
Marks ruled that the method violated the 8th Amendment. A three-judge panel of the 11th Circuit Court of Appeals and the U.S. Supreme Court both declined to overturn Marks' ruling.
While the ruling did not explicitly ban nitrogen hypoxia in every instance, the precedent set by Marks means any condemned person could mirror Lee's arguments and have their execution blocked.
Approving a firing squad method of execution would require an act of the Alabama Legislature. The State used this fact to argue that a firing squad was not a readily available alternative method, in addition to being required to find qualified volunteers to fire the rifles, and retrofitting an area at Holman Correctional Facility to carry out the shooting.
Attorney General Steve Marshall, who objected to Lee's execution being called off, is term-limited and will leave office at the beginning of next year, meaning that if his office is to pursue a firing squad as an execution method, it will be up to his successor.
"We welcome any additional options the legislature could provide, but we stand by the constitutionality of nitrogen hypoxia," Marshall told 1819 News.
The two candidates vying for the office are Marshall's current chief counsel, Katherine Robertson, and former Alabama Supreme Court Justice Jay Mitchell. The pair will face one another on Tuesday's Republican primary runoff election to determine the GOP's nominee in the general election. In a deep-red state like Alabama, the winner of the Republican nomination is generally considered the inevitable victor.
When asked whether their office would pursue a firing squad in the event of victory, the candidates gave similar answers, explicitly citing the qualifications they believe make them best positioned to pursue capital punishment in the state.
"As Chief Counsel for the Attorney General's Office, I stand by the constitutionality and effectiveness of Alabama's two available execution methods — nitrogen hypoxia and lethal injection," Robertson said. "While I welcome the legislature expanding our available options for the future, including the option of a firing squad, death row inmates requesting to be executed by currently unavailable methods is a tired delay tactic that will not be entertained in the case at hand. We are prepared to ensure that Jeffrey Lee will be executed without the need for any new laws."
Mitchell also echoed the dissent of the minority of federal judges who presided over Lee's case, stating the expressed desire for a firing squad was a "cynical bluff."
"I would support legalizing the firing squad, and it can be done constitutionally," Mitchell said. "But it does not solve all of Alabama's problems. The firing squad argument is a cynical bluff that murderers have been using for years, because they know the firing squad is not currently authorized by the State. If the legislature authorizes it, anti-death penalty lawyers will just find a new loophole to exploit. What really matters is having an AG's office that actually wins its cases."
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