Alabama appeared before the U.S. Supreme Court on Thursday morning, asking the justices to allow Jeffery Lee to be executed as scheduled Thursday night.<\/p>\n
Lower courts have barred the state from using nitrogen hypoxia to kill Lee, ruling that method\u2014where a mask is placed over the prisoner\u2019s face and he breathes in nitrogen until he blacks out and then dies from oxygen deprivation\u2014is \u201cprobably unconstitutional.\u201d<\/p>\n
But Alabama\u2019s solicitor general, A. Barrett Bowdre, told the justices that \u201cthe risk of \u2018breathing difficulty or breathing discomfort\u2019 from nitrogen hypoxia does not rise to the level of a severe pain that violates the Eighth Amendment\u2019s ban on cruel and unusual punishment.\u201d<\/p>\n
The court rejected Alabama\u2019s plea to allow the execution to go forward as planned in a short, unsigned order sent to reporters shortly after 9 p.m. EDT.<\/p>\n
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\nAs is often the case with orders on its emergency docket, the court did not explain its ruling.<\/p>\n
Three of the justices\u2014Clarence Thomas, Samuel Alito, and Neil Gorsuch\u2014said they would have sided with the state.<\/p>\n
Lee was convicted in the 1998 robbery and slayings of a pawn shop owner and employee.<\/p>\n
At Lee\u2019s trial, the jury recommended by a 7-5 vote that he be sentenced to life in prison without the possibility of parole, but the judge at Lee\u2019s trial overrode that recommendation and sentenced Lee to death.<\/p>\n
Lee last year challenged the state\u2019s use of nitrogen hypoxia. U.S. District Judge Emily Marks rejected his Eighth Amendment claim, saying any discomfort in using nitrogen hypoxia does not violate the amendment.<\/p>\n
She suggested that \u201cexecutions presume a risk of some pain.\u201d<\/p>\n
On June 8, the U.S. Court of Appeals for the 11th Circuit reversed Marks\u2019 decision and sent the case back for her to take another look.<\/p>\n
It reasoned that \u201c[t]here is \u2026 a substantial risk of serious harm\u201d from nitrogen hypoxia because the use of that method, based on findings by the district court, will lead to \u201cone to three minutes of \u2018severe air hunger and corresponding emotional distress, anxiety, physiological stress, and physical discomfort.\u2019\u201d<\/p>\n
\u201cSuch suffering,\u201d the court of appeals concluded, \u201cis over and above the mental distress that typically accompanies the knowledge of impending death by execution.\u201d<\/p>\n
A day later, the district court found that a firing squad, which Lee proposed as an alternative method of execution, would be a safer alternative to nitrogen hypoxia because it results in a painless death.<\/p>\n
Marks blocked the state\u2019s use of nitrogen hypoxia to execute Lee, and the appeals court refused to stay the ruling.<\/p>\n
Soon after, Alabama submitted a petition to the Supreme Court asking the justices to step in.<\/p>\n
Bowdre argued that allowing the lower courts\u2019 decisions to stand \u201cwould be unprecedented in American history. Not only does it portend the first-ever permanent ban on a legislatively enacted method\u201d of execution, \u201cbut it would expand the concept of cruelty well beyond the bounds of the Eighth Amendment\u201d by relying on the emotional distress that Lee alleges nitrogen hypoxia will cause.<\/p>\n
In reality, the state stressed, any risks from nitrogen hypoxia \u201cwould amount to no more discomfort than that caused by other constitutional methods of execution.\u201d<\/p>\n
But even if the court of appeals were correct \u201cthat nitrogen hypoxia presents a substantial risk of harm,\u201d Lee cannot show that the firing squad is the kind of readily available alternative required by the Supreme Court\u2019s cases when challenging a method of execution.<\/p>\n
Bowdre said the benefits of the firing squad are not \u201cclear and considerable,\u201d and it would be a difficult and time-consuming method of execution for the state to implement.<\/p>\n
Lee\u2019s lawyers asked the justices in a filing Thursday afternoon to deny the state\u2019s request.<\/p>\n
Thursday\u2019s court order means Alabama won\u2019t be able to move forward with Lee\u2019s execution using nitrogen hypoxia.<\/p>\n","protected":false},"excerpt":{"rendered":"
Alabama appeared before the U.S. Supreme Court on Thursday morning, asking the justices to allow Jeffery Lee to be executed as scheduled Thursday night. Lower courts have… <\/p>\n","protected":false},"author":1,"featured_media":3435,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"footnotes":""},"categories":[5],"tags":[],"class_list":["post-3434","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news"],"yoast_head":"\n