Alabama Faces Controversy Over Execution Methods

For a decade, Alabama death row inmate Jeffrey Lee has consistently stated his opposition to being executed by lethal injection. However, on September 17, this method is scheduled for his execution. This situation arises because the state has been prohibited from implementing nitrogen hypoxia, Lee’s preferred choice. Alabama has yet to demonstrate that its nitrogen hypoxia protocol is constitutionally sound. It seeks another opportunity, aiming to proceed with lethal injection due to its failure to present an acceptable alternative. Such a request should be denied. Lee’s execution should only occur if Alabama rectifies the constitutional shortcomings of nitrogen hypoxia.

In June, the 11th Circuit Court of Appeals determined that Alabama’s nitrogen hypoxia protocol involved a significant risk of severe harm, including intense pain beyond the death itself. This would make it unconstitutionally cruel. Alabama has not taken steps to address these concerns. Considering Alabama’s poor track record with lethal injection executions, no person should undergo this method.

Back in 2016, Lee filed a lawsuit challenging the constitutionality of Alabama’s lethal injection process. He argued that it posed a substantial risk of severe and cruel pain. Two years later, after Alabama offered inmates the option to choose nitrogen hypoxia instead of lethal injection, Lee and the state agreed to dismiss the lawsuit. The court affirmed this agreement, acknowledging that if Lee were to be executed, it would be through nitrogen hypoxia, not the lethal injection protocol in question.

Despite this clear understanding, Alabama now insists on executing Lee via lethal injection. Lee has returned to court to enforce the previous agreement. He argues that having moved to dismiss his challenge based on the agreement to use nitrogen hypoxia, the state cannot simply change its stance now. His complaint indicates that he reasonably relied on the state’s commitment to execute him by nitrogen hypoxia. He faces unfair detriment if the state proceeds with lethal injection.

According to Lee, Alabama’s execution statute confirms that lethal injection and electrocution are not available methods for executing him. Electrocution is unavailable because he did not choose it. Since he timely elected nitrogen hypoxia, lethal injection is only permissible if nitrogen hypoxia itself is ruled unconstitutional by the Alabama Supreme Court, the U.S. Supreme Court, or the 11th Circuit, should certiorari be denied. Lee maintains that none of these conditions have materialized.

On July 22, Federal District Judge Emily Marks ruled against Lee, allowing Alabama to use lethal injection. She cited a change in essential facts, referring to the June ruling on the constitutionality of the nitrogen hypoxia protocol. However, nothing significant has changed. The protocol’s deficiencies were present from its inception, and the court’s ruling simply acknowledged this fact.

Judge Marks is partly driven by concern for the victims of Lee’s crimes. She notes their important interest in the timely enforcement of his sentence. Marks suggested that ruling in Lee’s favor would practically delay his execution since the Alabama Department of Corrections would require time to develop a new protocol. However, the state should be mandated to create legal and adequate procedures for each execution method it offers. If a delay results from the state’s initial failure, it must be accepted. By ruling otherwise, Marks inadvertently rewarded the state for its negligence.

Ultimately, unless Alabama fulfills its promise to Lee, it should not proceed with his execution at all.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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