Alabama is trying a death penalty bait-and-switch

For a decade, Alabama death row inmate Jeffrey Lee has been clear that he does not want to be executed by lethal injection. But that is what awaits him on September 17.

He faces that prospect because the state has been enjoined from using nitrogen hypoxia, the alternative execution method he preferred, to put him to death. Having failed to show that its nitrogen hypoxia protocol is constitutionally acceptable, Alabama wants a do-over to force Lee to die by lethal injection as a result of its own failure. It should not get one.

Alabama should only be able to put Lee to death if it can fix nitrogen hypoxia’s constitutional defects.

In June, the 11th Circuit Court of Appeals found that Alabama’s nitrogen hypoxia execution protocol “presents a ‘substantial risk of serious harm’ — severe pain over and above death itself” and would be unconstitutionally cruel. Alabama has done nothing to address that issue.

Moreover, given Alabama’s recent dismal history of botched lethal injection executions, neither he nor anyone else should have to die by that method.

In 2016, Lee filed a lawsuit challenging the constitutionality of Alabama’s lethal injection protocol. In that litigation, Lee argued that “Alabama’s three-drug lethal injection protocol ‘creates a substantial risk of excruciating and cruel pain” to himself.

Two years later, after Alabama offered death row inmates the opportunity to choose to die by nitrogen hypoxia rather than lethal injection, Lee and the state agreed that the suit should be dismissed. The court concurred.

As the court noted, “the parties jointly represent that … ‘if he is to be executed,'” then the state “‘will carry out that execution by nitrogen hypoxia,’ not the three-drug lethal injection protocol at issue in this litigation.”

That seems pretty straightforward. “Will carry out” is the kind of unconditional language that puts parties on notice of what they have agreed to do or not do. Yet despite what it said when Lee dropped his lethal injection challenge, Alabama is now determined to execute Jeffrey Lee by that method.

Lee has gone back to court to try to enforce the prior agreement. He contends that “Having secured dismissal … of (his challenge to lethal injection) based on” the agreement to use nitrogen hypoxia, the state cannot just reverse course now.

Lee’s complaint notes that he “reasonably relied on the state representation that it would execute him by nitrogen hypoxia, and that he will face an unfair detriment” if the state is not prevented “from executing him by lethal injection.”

It said that “Alabama’s execution statute confirms that lethal injection and electrocution are not available methods to execute Mr. Lee. Electrocution is not available because Mr. Lee did not elect that method. … And because he timely elected nitrogen hypoxia, lethal injection is available only if nitrogen hypoxia as a method of execution—not merely the protocol implementing it—is held unconstitutional by the Alabama Supreme Court or the U.S. Supreme Court, or by the Eleventh Circuit if certiorari is denied.”

“None of those conditions,” Lee argued, “has occurred.”

On July 22, Federal District Judge Emily Marks ruled against Lee and gave the go-ahead for Alabama to use lethal injection to kill him.

In her opinion, she attributed the state’s decision to what she called a “change in the essential facts,” namely, the June ruling on the constitutionality of the state’s nitrogen hypoxia protocol. But nothing has really changed.

The nitrogen hypoxia protocol was defective from the moment it was adopted. The court ruling stopping its use simply recognized that fact.

Part of the reason Judge Marks is allowing the state to proceed arises from her concern for the victims of Lee’s crimes who, in her words, “have ’an important interest in the timely enforcement of [his] sentence.'” Marks suggested that if she ruled in Lee’s favor, “It would also have the practical effect of delaying his execution” because the Alabama Department of Corrections “would need time to develop a new nitrogen hypoxic protocol.”

But isn’t that what the state should be required to do?

Having given death row inmates a choice of execution methods, the state had, and has, an obligation to develop legally adequate procedures for administering each of them. If delay is the price the state has to pay for failing in that effort, so be it.

By ruling otherwise, Marks rewarded the state for its own negligence.

In the end, unless Alabama can deliver what it promised Lee, it should not be allowed to put him to death at all.

Source: thehill.com, Austin Sarat, August 17, 2026. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

"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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