Alabama came to the Supreme Court on Thursday morning, asking the justices to allow the execution of Jeffery Lee, who was sentenced to death for the 1998 robbery and murder of a pawn shop owner and employee, to proceed as scheduled on Thursday night. The lower courts have barred the state from using nitrogen hypoxia to execute Lee, calling that method – in which a mask is placed over the prisoner’s face and he breathes nitrogen until he passes out and then dies because of the lack of oxygen – “likely unconstitutional.” But Alabama’s solicitor general, A. Barrett Bowdre, told the justices that “the risk of ‘breathing difficulty or breathing discomfort’ from nitrogen hypoxia does not rise to the level of a severe pain that violates the” Eighth Amendment’s ban on cruel and unusual punishment.
Lee filed his challenge to the state’s use of nitrogen hypoxia last year. U.S. District Judge Emily Marks initially rejected his Eighth Amendment claim, writing that any discomfort from the use of nitrogen hypoxia does not violate the amendment. She suggested that “executions presume a risk of some pain.”
On June 8, the U.S. Court of Appeals for the 11th Circuit reversed Marks’ decision and sent the case back for her to take another look. It reasoned that “[t]here is … a substantial risk of serious harm” from nitrogen hypoxia because the use of that method, based on findings by the district court, will lead to “one to three minutes of ‘severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort.’” “Such suffering,” the court of appeals concluded, “is over and above the mental distress that typically accompanies the knowledge of impending death by execution.”
One day later, the district court determined that a firing squad, which Lee proposed as an alternative execution method, would be a safer alternative to nitrogen hypoxia because it produces a painless death. Marks prohibited the state from using nitrogen hypoxia to execute Lee, and the court of appeals declined to put that decision on hold.
Alabama came to the Supreme Court shortly thereafter, asking the justices to intervene. Bowdre argued that allowing the lower courts’ decisions to stand “would be unprecedented in American history. Not only does it portend the first-ever permanent ban on a legislatively enacted method” of execution, “but it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment” by relying on the emotional distress that Lee alleges nitrogen hypoxia will cause.
In reality, the state stressed, any risks from nitrogen hypoxia “would amount to no more discomfort than that caused by other constitutional methods of execution.” But even if the court of appeals were correct “that nitrogen hypoxia presents a substantial risk of harm,” Lee cannot show that the firing squad is the kind of readily available alternative required by the Supreme Court’s cases when challenging a method of execution. The firing squad’s “advantages are not ‘clear and considerable,’” Bowdre contended, and it would be a difficult and time-consuming method of execution for the state to implement.
Stephen Vladeck, a Georgetown University law professor, filed a “friend of the court” brief in which he urged the justices to deny the state’s request. Vladeck emphasized that Alabama is asking the court to lift a permanent, rather than temporary, ban on the use of nitrogen hypoxia. As a result, he said, Alabama’s filing as a practical matter asks the justices to “set aside a final judgment on the merits and clear the way for an execution. That is tantamount to a request for summary reversal, which … properly” should be treated as a request for review of the lower court’s decision, rather than for emergency relief, and which is subject to a significantly more stringent standard than Alabama is invoking.
