Supreme Court blocks Alabama nitrogen execution

The Supreme Court late Thursday refused to let Alabama execute Jeffery Lee with nitrogen gas, leaving in place lower court rulings that found the state’s protocol likely violates the constitutional ban on cruel and unusual punishment.

The one-sentence order denied Alabama’s emergency request just hours before Lee, 49, was scheduled to die at 6 p.m. local time. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the state’s request, but they did not write a dissent.

Lee, who was convicted of killing Jimmy Ellis and Elaine Thompson during a 1998 pawnshop robbery west of Montgomery, remains under a death sentence. The ruling blocks Alabama from using nitrogen hypoxia for now, but the state can seek to carry out his execution by another method or try again later. A spokesperson for the Alabama Department of Corrections told The Associated Press the execution was off for the evening and the state would not try another method Thursday.

Alabama Attorney General Steve Marshall condemned the decision. “Tonight’s ruling is a miscarriage of justice, not for us, but for Jimmy Ellis and Elaine Thompson, who Jeffery Lee brutally and senselessly murdered,” Marshall said. “I want their families to know that we will never stop seeking justice for Jimmy and Elaine.”

Gov. Kay Ivey said the state can still reschedule the execution. “While I am disappointed the Supreme Court did not allow the state to proceed with Lee’s chosen method of execution, I remain committed to ensuring that justice is ultimately served for his victims,” Ivey said. She noted that Lee chose nitrogen over lethal injection in 2018, before Alabama had developed its nitrogen protocol.

Lee later challenged that protocol and asked to be executed by firing squad, a method not legal in Alabama. His lawyers have also asked Ivey to commute his sentence, citing that his jury voted for life without parole before a judge overrode that recommendation and imposed death. Alabama banned that practice, known as judicial override, in 2017, but the change did not apply retroactively.

“Two courts ruled the method unconstitutional. Today, the Constitution prevailed,” Lee’s legal team said. “Now Governor Ivey can finish what the jury started: restore the jury’s verdict of life without parole.”

The legal fight accelerated this week. A federal district judge initially found Alabama’s nitrogen method constitutional. The 11th U.S. Circuit Court of Appeals reversed that decision, saying the protocol posed “a substantial risk of serious harm” and likely caused “severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort” before death. The district court then barred Alabama from using the method on Lee.

Nitrogen hypoxia involves strapping an industrial-grade mask to a prisoner’s face and forcing the person to breathe nitrogen, depriving the body of oxygen. Alabama told the Supreme Court the method “rapidly causes death” and described it as “humane, painless, effective, and reliable.”

Opponents say it amounts to torture. The American Thoracic Society filed a brief opposing Alabama’s request, saying “nitrogen hypoxia executions cause intense, inhumane suffering.” Witnesses to prior nitrogen executions have described prisoners shaking, gasping, moaning or struggling against restraints. According to media witnesses, Anthony Boyd, executed in Alabama in October, took 30 minutes to be declared dead.

Alabama became the first state to use nitrogen gas in executions in 2024. Eight people have been executed by nitrogen in the United States, including seven in Alabama and one in Louisiana. Alabama’s primary execution method remains lethal injection, though the state has said obtaining the drugs has been difficult in recent years.

Lee was found guilty in 2000 of murdering Ellis and Thompson and attempting to murder Helen King. Authorities said Lee entered Jimmy’s Pawn Shop with relatives, claimed he was looking at wedding rings, left, then returned minutes later with a sawed-off shotgun and opened fire.

Lee told NBC News this week that he is remorseful and has found redemption through his Christian faith. “God — he’s not finished,” he said. “He’s still working, not only on my behalf, but on the other brothers’ behalf that are still facing this situation.”