With nitrogen gas blocked, Alabama seeks to execute inmate by lethal injection

Jeffery Lee, who successfully challenged his scheduled Thursday execution by nitrogen gas, argued that execution by firing squad would be less painful.

The Alabama Attorney General’s Office Friday sought to put an Alabama death row inmate to death by lethal injection a day after the U.S. Supreme Court rebuffed the state’s attempt to execute him by nitrogen gas.

In a filing with the Alabama Supreme Court Friday afternoon, the state sought an expedited motion to set a new execution date for Jeffery Lee, 49. The state said that with a permanent injunction in place against nitrogen gas, the method by which the state intended to execute Lee on Thursday, it could execute him by lethal injection or the electric chair.

“While Lee elected hypoxia, he has made clear that he does not want to be executed by that method, and the federal courts have prohibited ADOC from employing it with him,” the filing states. “ADOC is prepared, however, to execute Lee via lethal injection with the three-drug cocktail adopted in 2014 and used since that time.”

A message was sent to the Alabama Attorney General’s Office on Friday seeking comment. Lee’s attorneys declined comment Friday. Lee said in his filings that he wanted to be executed by firing squad, a method a lower court on Tuesday said was feasible for the state to carry out.

Lee was convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery in Orrville. The jury at his trial voted 7-5 to sentence him to life in prison, but the trial judge overruled the jury and imposed the death sentence.

Lee said in court that his execution by nitrogen gas would constitute cruel and unusual punishment and argued that execution by firing squad, not authorized by Alabama state law, would be a less painful way to die. Alabama has conducted seven nitrogen gas executions since 2024. Witnesses have reported that those subjected to the procedure gasped and convulsed throughout it.

U.S. District Court Judge Emily Marks ruled last month that while Lee would experience pain while he was exposed to “air hunger” for one to three minutes, it did not rise to a level that violated his constitutional rights against cruel and unusual punishment.

A three-judge panel of the U.S. 11th Circuit Court of Appeals disagreed, saying the deprivation of air went “over and above the mental distress that typically accompanies the knowledge of impending death by execution.” The court ordered Marks to consider whether death by firing squad was a readily feasible alternative.

Marks then ruled in Lee’s favor and issued a permanent injunction that prevented the state from executing him using nitrogen gas.

The Alabama Attorney General’s Office argued that the state did not have the facilities to conduct an execution by firing squad or the time to recruit and train people to use firearms to execute a person. They also questioned expert testimony on the speed of firing squad deaths. Lee’s attorneys cited testimony from a former Corrections commissioner who said the state could conduct executions by firing squads if directed, and said the state had not challenged key conclusions of the expert at trial.

The U.S. Supreme Court Thursday evening upheld the injunction without comment. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch noted their dissents without issuing an opinion.

Those who opposed executions in Alabama praised the decision Friday.

“I am not sure it should require a court to tell us that suffocating someone to death is cruel and unusual, and that we shouldn’t be doing it,” said Rep. Chris England, D-Tuscaloosa, in an interview on Friday. “It is past time for the state of Alabama to pose the question to Alabamians as to whether the state of Alabama can continue to kill.”

Eric M. Freedman, a law professor at Hofstra University in New York who has litigated death penalty cases, said on Friday he hoped the Supreme Court’s ruling signaled “a return to normal judicial procedure.”

“There is nothing surprising about this,” he said. “In a normal kind of case, this would be so routine that the losing party would have never applied to go rushing to the Supreme Court.”

Freedman also noted that the state was effectively seeking to conduct an execution in a case that would have still been under review by the courts had the stay been lifted.

“Suppose there was a big contract case, and I was ordered to restore your vegetation to the way that it was, or I was ordered not to encroach on your property and destroy your cabin,” Freedman. “That may be a law and you could appeal it, but it wouldn’t make a lot of sense to suspend the injunction while you appealed it and then let me destroy the cabin in the meantime.”

The Supreme Court’s decision allows the state to continue to appeal the permanent injunction, limited to preventing the state from executing Lee by nitrogen gas.

Alabama could continue to appeal the case based on the merits of Marks’ ruling, execute Lee using a method currently allowed in the state, or find a way to put him to death by his preferred method: firing squad.

“In sum, ADOC has not been barred from executing Lee, only from executing him by nitrogen hypoxia. While Lee may try to reopen his 2016 challenge to the lethal injection protocol, that is no reason for this Court not to authorize Lee’s execution,” the AG’s motion states. “Indeed, given the history of this case, the Court should expedite that decision so that Lee does not continue to evade justice.”

Source: alabamareflector.com, Ralph Chapoco, 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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