After a Monday reversal by a three-judge panel of the 11th Circuit Court of Appeals, U.S. District Judge Emily Marks has barred the state from carrying out Thursday's proposed nitrogen hypoxia execution.
A three-judge panel of the 11th Circuit Court of Appeals approved a second hearing this week for Jeffrey James Lee, 49, who was sentenced for the 1998 murder of Jimmy Ellis and Elaine Thompson in an attempted robbery.
Lee was initially scheduled for death by nitrogen hypoxia, a method where the condemned person is forced to breathe pure nitrogen until they pass away. However, Lee's attorneys argued that the method violates the Eighth Amendment of the U.S. Constitution. In his filing before the 11th Circuit, Lee argued that death by firing squad would be his preferred method.
The 11th Circuit did not stay Lee's Thursday execution in its Monday ruling. Instead, it granted one of Lee's arguments for a preliminary injunction and remanded the second to the district court for determination.
According to the court, Lee satisfied one of two requirements of challenging his execution by stating nitrogen hypoxia "presents a substantial risk of serious harm, severe pain over and above death itself." This goes against previous court rulings denying appeals based on 8th Amendment claims against nitrogen hypoxia. The court argued the reason for not granting 8th Amendment claims in a previous case – one that has been used as precedent in the subsequent years – was due to the insufficient arguments from the inmate's attorneys and a reliance by the court on state expert witnesses who testified to the method's lack of physical anguish.
"In our view, the overall suffering described by the district court, which lasts for one to three minutes, presents a substantial risk of serious harm over and above death itself. 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 under Alabama's nitrogen hypoxia protocol.
"Such suffering, we believe, is over and above the mental distress that typically accompanies the knowledge of impending death by execution."
The court then remanded the determination of the second part of Lee's challenge to his execution back to the district court.
"Mr. Lee must also identify an alternative method that 'is feasible, readily implemented, and in fact significantly reduces the risk of harm involved,'" the court wrote.
Lee's attorney asserted that execution by firing squad pursuant to the Utah protocol is a feasible, readily implementable, and less painful alternative within the meaning of the Eighth Amendment.
In her ruling, Marks accepted that nitrogen hypoxia violates the Eighth Amendment and agreed with Lee's request, saying the state would be able to accommodate Lee's proposed alternative and produce a "quick and painless death."
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."
However, she also noted, "Were Alabama to adopt firing squad as a method of execution, that method would likely be challenged as well. Indeed, there is likely no method—no matter how humane—that would be immune to constitutional challenge."
A spokesperson from Attorney General Steve Marshall's office said they were still pursuing options.
On Dec. 12, 1998, around noon, Lee entered Jimmy's Pawnshop in the town of Orrville in Dallas County, armed with a sawed-off shotgun. Immediately upon entering the store, he shot Jimmy Ellis. After shooting Ellis, he shot Thompson in the face. Continuing his shooting, he shot another person, Helen King, and shot Ellis again. Thompson and Ellis died as a result of the shotgun blasts.
King survived the shooting after lying motionless on the floor pretending to be dead. Lee unsuccessfully attempted to take the cash register from the store and escaped with two others. A surveillance video captured the murders, and he later confessed after being captured in a Georgia motel.
The jury recommended Lee be sentenced to life in prison. However, the court overruled the recommendation, sentencing him to death and doling out an additional life sentence for the attempted murder of King.
Lee's attorneys have attempted to stay his execution, saying the process that involves replacing breathed oxygen with nitrogen, causing the subject to lose consciousness and die, violates the constitutional provisions against cruel and unusual punishment. However, similar attempts have been made to no avail in the method's seven previous uses in the state.
Other anti-death penalty advocacy groups have also claimed it to be immoral to execute Lee, citing his childhood trauma, early substance abuse and a traumatic brain injury.
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