SCOTUS: Alabama can’t execute Jeffery Lee by nitrogen; Thursday execution called off

After a week of legal volleyball, Alabama death row inmate Jeffery Lee’s execution—scheduled for Thursday evening—was called off after federal courts called the state’s nitrogen gas execution method “likely unconstitutional.” The state took the fight to the U.S. Supreme Court, hoping Lee could still be put to death tonight. 

In an order issued at 8:10 p.m., the U.S. Supreme Court ordered that it would not lift a ban on Alabama executing Lee via nitrogen. In a short court order, the justices denied Alabama’s motion to go ahead with the execution. 

Associate Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would have granted the appeal and let the execution proceed, according to the order. 

The execution was set for 6 p.m. at William C. Holman Correctional Facility in Atmore, a small town in south Alabama just off Interstate 65 and a few miles from the state’s border with Florida. Lee, 49, was set to die by breathing in pure nitrogen gas—but the plan changed when, on Wednesday night, the U.S. Court of Appeals for the 11th Circuit upheld a ruling that said Lee can’t be put to death that way. 

It was the 3rd court ruling in 3 days in Lee’s case, a legal back-and-forth that centered on Lee’s complaints about the state’s nitrogen method and his proposed alternative: a firing squad. 

On Monday night, the U.S. 11th Circuit Court of Appeals reversed a decision and sent his civil lawsuit back to a lower federal judge, ordering her to rule on whether the firing squad was a feasible alternative. On Tuesday around 5 p.m., U.S. District Judge Emily Marks ruled. She ruled that Alabama’s method of carrying out nitrogen executions was unconstitutional and the firing squad met the legal standard for being readily available, even though the state couldn’t employ the method immediately. 

The appeals court, the U.S. 11th Circuit Court of Appeals, upheld that ruling on Wednesday night. 

On Thursday morning, the Alabama Attorney General’s Office appealed to the U.S. Supreme Court, asking it to overturn the lower court decisions. 

“If that ruling stands, it would be unprecedented in American history,” wrote the state’s top prosecutors. “Not only does it portend the 1st-ever permanent ban on a legislatively enacted method, but it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment.” 

The state called the ruling from Marks and the 11th Circuit judges “outlandish.” 

The US Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain.

“While a risk of emotional distress might be relevant, the notion that a generally physically painless method nonetheless involves a level of ‘severe pain’ akin to barbaric torture is outlandish.” 

Lee’s team told the justices that Alabama wanted a court order at the “11th hour” to reverse what several judges had already agreed upon. “Lee should not have won,” the state wrote. 

“Mr. Lee does not challenge his death sentence or Alabama’s authority to carry it out,” his lawyers wrote. “He challenges only the method that Alabama intends to employ.” 

Shortly after the Supreme Court issued their ruling, the prison system confirmed the execution had been called off. 

Gov. Kay Ivey released a statement after the decision: “Jeffery Lee was convicted and sentenced to death for the December 1998 murder-robbery of Jimmy Ellis and Elaine Thompson in Dallas County. 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.” 

Lee’s case: Nitrogen vs firing squad 

Lethal injection is the state’s default execution method. It’s a 3-drug cocktail designed to administer a sedative before lung-stopping and heart-stopping drugs. The state’s lethal injection process has faced scrutiny after several executions were called off when prison workers couldn’t find a vein to insert the intravenous lines. Gov. Kay Ivey briefly paused the state’s execution process for an internal investigation. 

In 2018, Alabama passed a law to allow nitrogen gas as another method of execution. For one month that summer, prisoners on death row had the opportunity to change their method of execution from lethal injection to nitrogen gas, although the state did not yet have a way to perform nitrogen executions or a plan for how they would be carried out. 

Lee was one of the inmates who opted to change their methods. 

After Alabama first used nitrogen as a tool for capital punishment in January 2024 for the execution of Kenneth Eugene Smith, controversy erupted over how it was done. Lee, along with a handful of other Alabama death row inmates, filed a lawsuit in 2025 over the nitrogen execution protocol. 

Lee’s lawyers argued that Alabama’s method of carrying out nitrogen executions causes extreme mental and physical pain and suffering, and they proposed alternatives to the nitrogen-gassing method, including a firing squad. 

The firing squad has become an integral part of Lee’s case. 

On Wednesday night, the appeals court agreed that it was a feasible alternative to nitrogen and would be “significantly less painful” than death by gassing.

Such suffering, we believe, is over and above the mental distress that typically accompanies the knowledge of impending death by execution.

The judges wrote that Alabama’s nitrogen protocol was “likely unconstitutional.” 

“The equities, we believe, favor Mr. Lee,” wrote the appellate judges. “And even if they do not favor Mr. Lee, they do not favor (Alabama).” 

Lee’s firing squad request has come a long way from just last month, when Judge Marks sided with the state and ruled that the nitrogen method did not cause any suffering beyond what a death sentence already causes. 

After that ruling, the appellate court disagreed. It reversed the decision and sent the case back to Marks on Monday. The three 11th Circuit judges who reviewed the case wrote about nitrogen, “In our view, the overall suffering described by the district court, which lasts for 1 to 3 minutes, presents a substantial risk of serious harm over and above death itself.” 

The appellate court continued: “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.” 

Marks said the back and forth over execution methods isn’t unique to this case nor to Alabama. 

“As methods evolve and change, so too do the challenges to each method. The only constant is litigation. 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.” 

She continued: “But the Constitution does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality.” 

Jimmy Ellis and Elaine Thompson

Lee has spent over 25 years on death row for the 1998 shootings of Jimmy Ellis, Elaine Thompson, and Helen King during a pawn shop robbery in Orrville. Ellis and Thompson were killed in the store; King survived her injuries. 

The shooting happened on Dec. 12, 1998. According to both court records and Lee’s campaign for clemency, Lee, his brother, and his cousin went to Jimmy’s Pawn Shop in Dallas County, outside Selma. There, Lee looked at wedding rings and told King that Lee would return with money to buy one. 

Lee, his brother, and his cousin left the store. Lee drank liquor and smoked a cigarette containing marijuana and cocaine. He then returned to the shop with a sawed-off shotgun. He fired multiple times at Ellis, who owned the store, Thompson, and King. 

Ellis and Thompson, his ex-wife, died on the floor of the pawn shop. 

Lee tried to take the cash register before he ran out of the store but couldn’t detach it from the counter. He left with nothing. 

The shooting was caught on surveillance video, and Lee was arrested the next day in Georgia. 

Ellis owned the pawn shop, but he had another career that had taken him outside the small town of Orrville, Alabama, and into the bright lights of fame. He was a singer who for years performed under the name Orion and who rose to fame under the guise of being Elvis Presley when much of the world thought Elvis was dead. 

As detailed in a 2015 documentary called “Orion: The Man Who Would Be King,” Ellis gave up his successful horse-training career to be an entertainer. He eventually connected with Shelby Singleton of Sun Records, who concocted a scheme after Elvis’s death for Ellis to play into fans’ fantasies and perform as a masked man who could have been the King of Rock and Roll returned from the grave. 

A spokesperson for Sun Records told AL.com: “There were a lot of fans who believed Elvis never actually died, and Orion became part of that mythology due to his Sun Records ties and soundalike voice.” 

The phenomenon started in 1979. Band members told the documentary’s filmmakers how people wanted to be part of the fantasy and how reverently they treated Ellis. As Orion, Ellis recorded multiple albums and had fans who followed him around the country. 

On Spotify, Orion still has over 6,000 monthly listeners around the globe. He still has dedicated fan clubs. 

All these years later, Orion lives on. “His impact continues—he’s a legendary cult figure in music, and many even think singer Orville Peck’s signature masquerade mask was inspired by Orion, who always wore a similar mask,” said Sun Records marketing manager Laura Pochodylo. 

“Orion was a talented artist, and his murder was a tragedy that cut a life short.” 

Lee wasn’t sent to death row by a jury. 

After his conviction in 2000, a jury sentenced him to life without the possibility of parole by a 7-5 vote. But a judge overturned that sentence and sent Lee to await execution on death row in a process called judicial override. The practice was banned by Gov. Kay Ivey in 2017, but her decision did not apply to those who were already on death row because of judicial override. 

While lawyers for death row inmates have sought to have the practice banned retroactively and to have those under judicial override sentences moved to life in prison, the courts have disagreed. 

The 2 executions that Ivey has called off—Robin “Rocky” Myers and Sonny Lee Burton—were judicial override cases. 

According to a website set up to seek clemency for Lee, he experienced severe childhood trauma, a traumatic brain injury, drug addiction, and mental illness prior to the 1998 shooting. The group that runs the website wrote that Lee had an excellent prison record, participated in multiple programs, and was granted privileges at Holman. 

According to a statement from Lee on the website, he has taken responsibility for the crime he committed when he was 21. 

“It won’t be a day for the rest of my life that I won’t think and pray for those families…pray for the lives that was affected by my actions,” he said. 

The website has many people speaking out for Lee, including nationally known advocate Sister Helen Prejean. 

“One time I was in an execution chamber, and a guard said to me, ‘You know, the man we’re killing tonight is different from that young, brash animal that came in here cursing God and everybody. He’s changed his life.’ And this is definitely true of Jeffery,” Prejean said. 

Groups like the ACLU of Alabama have advocated for retroactivity. 

“We believe Judge Marks made the right decision to intervene and ruled that execution by nitrogen hypoxia is unconstitutional,” said JaTaune Bosby Gilchrist, the ACLU of Alabama’s executive director. 

“Despite that decision, the State of Alabama continues to pursue Jeffrey Lee’s execution even though no jury ever sentenced him to death. Judges in Alabama are no longer allowed to overrule a jury’s sentence in capital cases, and we urge the state to restore the jury’s original sentence of life without parole.” 

Source: al.com, Ivana Hrynkiw, June 12, 2026

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

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