Days before Alabama execution, federal court orders new hearing

A federal appeals court Monday ordered a new hearing for an Alabama death row inmate scheduled to be executed on Thursday, but did not stay the execution.

The three judge panel of 11th Circuit Court of Appeals judges — U.S. District Court judges Adalberto Jordan, Robert J. Luck and Embry Kidd, appointed by Presidents Barack Obama, Donald Trump and Joe Biden — ruled that Alabama’s use of nitrogen gas for executions violated the Eighth Amendment protections against cruel and unusual punishment for Jeffrey Lee, 50, who was sentenced to die for the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery.

The panel ordered U.S. District Judge Emily Marks to determine whether Lee could be executed by his preferred method of firing squad.

The judges said the nitrogen gas method causes the condemned person to experience “air hunger,” oxygen deprivation, which “triggers the body’s ‘extreme physiologic need to get more oxygen’ and produces ‘intense physiologic stress that causes intense suffering.’”

“In our view, the overall suffering described by the district court, which lasts for one to three minutes, presents a substantial risk of serious harm over and above death itself. 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,” the ruling stated. “Such suffering, we believe, is over and above the mental distress that typically accompanies the knowledge of impending death by execution.”

A message was sent to Lee’s attorneys and the Alabama Attorney General’s Office on Monday evening seeking comment.

The panel did not stay the Thursday execution. To be granted a preliminary injunction, he must also prove that death by firing squad is also an adequate alternative.

Lee “‘must identify an alternative method that is feasible, readily implemented, and in fact significantly reduces’ the risk of harm involved,” the order said.  The judges said that because the district court did not issue a ruling on that part of the argument, they could not consider it.

“Mr. Lee asks us to resolve that issue now, but we are not equipped to do so,” the order said.

According to court documents, Lee entered a pawn shop in Orrville in December 1998 and shot Ellis, the owner, Thompson, an employee and Helen King, another employee.

Federal judge allows Alabama nitrogen gas execution to go forward

A jury voted 7-5 to recommend sentencing Lee to life in prison without the possibility of parole. A judge overruled the recommended sentence and sentenced him to death.

Marks on May 29 ruled based on testimony from three medical experts that people executed using nitrogen gas would experience “air hunger” for one to three minutes, but decided that the level of pain did not rise to the level that it can be considered unconstitutional.

“For Eighth Amendment purposes, the anxiety evoked by air hunger — lasting not significantly more than one to three minutes — is more an ‘inescapable consequence of death,’ than ‘superadded’ pain well beyond what’s needed to effectuate a death sentence,” Marks wrote.

The 11th Circuit judges disagreed, writing that amount of time is enough to make the method unconstitutional.

“Based upon the district court’s factual findings, we hold that Alabama’s nitrogen hypoxia protocol presents a ‘substantial risk of serious harm’—severe pain over and above death itself,’” the order states.

Opponents of the death penalty praised the decision.

“For the first time, a court has acknowledged what I and so many others have seen with our own eyes … nitrogen executions are a unique form of horror,” said Rev. Jeff Hood, a spiritual advisor to several death row inmates, in a statement sent on Monday.

About 50 people gathered at the front steps of the Capitol building on Monday to protest the pending execution and to deliver a petition signed by an unknown number of people.

Lee is the first person in Alabama set to be executed for the year after Ivey granted clemency to Charles “Sonny” Burton in March.