Jeffrey Lee, an inmate on Alabama’s death row, has consistently expressed his preference against execution by lethal injection for over ten years. However, his execution date is set for September 17, with lethal injection as the method due to Alabama’s inability to establish a constitutionally sound protocol for nitrogen hypoxia, the alternative Lee preferred.
The crux of the issue lies in a federal court’s injunction, which prohibits the use of nitrogen hypoxia due to concerns about its constitutionality. In June, the 11th Circuit Court of Appeals found that Alabama’s protocol for this execution method poses a significant risk of severe pain, rendering it cruel and unconstitutional. Alabama has not addressed this concern.
In 2016, Lee initiated a lawsuit challenging Alabama’s lethal injection protocol, arguing it posed a substantial risk of cruel pain. Two years later, Alabama allowed inmates the option to choose nitrogen hypoxia over lethal injection. Subsequently, Lee and the state agreed to dismiss the lawsuit, with the understanding that nitrogen hypoxia would be used if execution proceeded.
The language used in the dismissal was clear, indicating a commitment. Despite this, Alabama is now intent on enacting lethal injection. Lee has returned to court, citing reliance on the state’s promise of execution by nitrogen hypoxia.
According to Lee’s complaint, Alabama’s execution statute doesn’t include lethal injection or electrocution as available options, as Lee neither chose electrocution nor failed to timely elect nitrogen hypoxia. Lethal injection is permissible only if nitrogen hypoxia is deemed unconstitutional by the Alabama Supreme Court, U.S. Supreme Court, or the 11th Circuit fails to take the case. None of these conditions have occurred.
“None of those conditions,” Lee argued, “has occurred.”
On July 22, Federal District Judge Emily Marks ruled against Lee, authorizing lethal injection. Marks cited a change in circumstances tied to the June ruling on nitrogen hypoxia’s constitutionality. However, the protocol’s defects were inherent from adoption and the ruling affirmed this.
Judge Marks highlighted considerations for the victims of Lee’s crimes, emphasizing their importance in timely sentence enforcement. Notably, she suggested a decision favoring Lee might delay execution as Alabama develops a viable nitrogen hypoxia protocol. However, the state’s responsibility includes creating lawful procedures for all allowed execution methods.
Ultimately, unless Alabama meets its commitment to Lee, it should not proceed with execution. The failure to deliver on this promise reflects state negligence and, as argued, should halt the use of lethal injection altogether.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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