The State of Alabama has appealed a Tuesday decision by the District Court for the Middle District of Alabama, which barred the State from conducting a planned Thursday execution by nitrogen hypoxia.
The method, which involves replacing the oxygen the condemned person breathes with nitrogen until the person passes away, has already been used seven times in the state.
After the 11th Circuit Court of Appeals sent the case back to the district court, U.S. District Judge Emily Marks barred the State from carrying out the planned execution, holding that it violated the 8th Amendment of the U.S. Constitution.
Marks also claimed that the State could readily carry out a firing squad execution.
“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."
Jeffery James Lee, 49, who was sentenced for the 1998 murder of Jimmy Ellis and Elaine Thompson in an attempted robbery, argued that he would prefer to be executed by firing squad, one method that is not approved in the State of Alabama.
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.
“[T]he State of Alabama more broadly—will be harmed if the State is not permitted to carry out Jeffery Lee’s overdue death sentence on June 11,” the State argued. “Despite having chosen nitrogen hypoxia as his method of execution nearly eight years ago, Lee ran out the limitations period and failed to request interim relief until just last week.”
It continued, “Lee filed a civil action against lethal injection in 2016, elected nitrogen hypoxia to avoid that method in 2018, and now, years later, claims that the method he chose is unconstitutional and that he would prefer to be shot in the chest. Appellants have no doubt that should ADOC adopt the firing squad protocol Lee allegedly desires, he would find fault with it. Indeed, Lee admitted during his deposition that when he saw people get shot, they reacted ‘[l]ike it hurt,’ they ‘scream[ed] and moan[ed],’ and that their recovery was ‘[p]retty painful.’”
The District Court’s decision to ban nitrogen hypoxia, where it had allowed it before, came after reports of its usage in previous executions, where witnesses described the inmate experiencing distress and pain, and a medical expert who testified that the affected person experiences “air hunger,” also called dyspnea, in the process.
The State rejected the opinion of the medical expert, stating he “came to the stand with undisclosed bias, his opinions shifted throughout the litigation, and his claims as to ADOC’s facilities and personnel are unsupported.”
The State argues in its appeal to undo the District Court’s decision that developing a system of firing squad would be unfeasible, and that it would not produce a significantly lesser degree of pain than any other method.
“[T]he Supreme Court has never invalidated a state’s chosen method of execution—not hanging, firing squad, electrocution, cyanide gas, or lethal injection, all of which carry real risks of physical pain,” the State wrote. “Nitrogen hypoxia, which, in the district court’s estimation, may lead to one to three minutes of dyspnea and some resulting distress, does not violate the Eighth Amendment, nor is it a more painful method of execution than firing squad.”
The Alabama Department of Corrections has not yet called off Lee’s execution, which is still slated for Thursday, based on the timeline laid out by the Alabama Supreme Court.”
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