New execution date set for Alabama death row inmate who stopped nitrogen gas execution

Alabama Gov. Kay Ivey Thursday set a September execution date for Jeffrey Lee, a death row inmate who successfully prevented the state from executing him by nitrogen gas in June.

Ivey said in a statement that Lee would be executed by lethal injection on Sept. 17. He was convicted of capital murder in the killings of Jimmy Ellis and Elaine Thompson during a robbery of a pawn shop in Orrville in 1998.

The move came eight days after a federal court rejected Lee’s argument that a 2018 settlement with the state over an earlier lethal injection prevented Alabama from putting him to death by lethal injection.

A message seeking comment was sent to Lee’s legal team on Thursday.

Lee argued during the litigation over nitrogen gas that he would prefer to be executed by firing squad, a method not currently authorized in Alabama state law but which the federal courts ruled was feasible.

Lee’s challenge to the state’s use of nitrogen gas was one of several challenges brought by death row inmates against the method, which has been used in seven executions in Alabama since January 2024 and one in Louisiana. While the method was authorized by the Legislature in 2018 in part with arguments that it would be a more humane method of death, witnesses have reported those subjected to it gasping and struggling for air.

After a trial this spring, U.S. District Judge Emily Marks ruled that Lee would experience “air hunger” between one to three minutes, but that such suffering did not violate Lee’s Eighth Amendment protections against cruel and unusual punishment because it was required to put Lee to death by that method.

But a three-judge panel at the 11th Circuit Court of Appeals ruled in Lee’s favor, saying that 60 to 180 seconds is a long time to experience hunger and that it “presents a substantial risk of serious harm over and above death itself.” The judges asked Marks to determine if a firing squad was feasible. Marks ruled it was and issued a permanent injunction against its nitrogen gas protocol.

The U.S. Supreme Court allowed Marks’ ruling to stand.

Shortly after, the Alabama Attorney General’s Office moved to execute Lee by lethal injection. Lee then filed a request on July 7 challenging the state’s right to execute him by lethal injection, but Marks denied the motion, writing that the facts of the case had changed since the 2018 agreement.