Jeffery Lee is facing execution in Alabama on Thursday, despite a previous Supreme Court decision that stopped the state from using nitrogen gas to put him to death.
The 49-year-old was initially scheduled to be executed with nitrogen hypoxia in June. However, the US Supreme Court intervened and blocked Alabama from applying its nitrogen execution protocol to his case.
The latest execution plan has created a fresh legal dispute because Lee never selected lethal injection, while Alabama had previously agreed not to execute him using that method.
Lee was sentenced to death over the 1998 killings of pawn shop owner Jimmy Ellis and his former wife, Elaine Thompson, during a robbery near Selma. Unless another court intervenes, Alabama will administer a lethal injection on Thursday evening.
His lawyers are not asking for his death sentence to be permanently cancelled. Instead, they argue that the state should respect the method Lee selected and ensure that whatever method is eventually used does not breach the constitutional ban on cruel and unusual punishment.
Lee has proposed a firing squad as another option, but Alabama does not currently permit executions by firing squad.
Lee chose nitrogen hypoxia in 2018, at a time when Alabama had yet to develop a procedure for carrying out executions with nitrogen. As part of a legal settlement, the state agreed that it would not execute him by lethal injection.
Alabama’s lethal injection system underwent a review in 2022 after difficulties surrounding previous executions. Despite those concerns, lethal injection remains the state’s principal execution method.
The state introduced nitrogen hypoxia as an alternative in early 2024 and has since used it to execute seven prisoners.
Descriptions from witnesses at some of those executions have raised questions about what prisoners experience during the process, with witnesses reporting prolonged gasping, convulsions and movements against restraints.
Kenneth Smith was the first Alabama prisoner executed using nitrogen gas. His family watched from the execution chamber at the state prison in Atmore, where the procedure lasted 15 minutes.
“It was the awfullest thing I’ve ever seen in my whole life,” Smith’s son, Steven Tiggleman, said Wednesday. “You got a scuba mask strapped to your face, and they’re suffocating you to death.”
Anthony Boyd, the latest Alabama inmate executed using nitrogen gas in October, also appeared to take longer than expected to die. A media witness said Boyd gasped for air more than 225 times.
The Rev. Jeff Hood, who served as a spiritual adviser to both Smith and Boyd, said the procedure was different from how it had been portrayed.
“Nitrogen doesn’t put a man to sleep. It makes him drown in a room full of air,” he said Wednesday. “Nitrogen hypoxia is dead because of Jeffery Lee.”
Lee challenged Alabama’s use of nitrogen hypoxia in court last year, arguing that the procedure amounted to “conscious suffocation” that “is cruel and unusual because it superadds terror and pain during the execution.”
A federal district court ruled in his favour, followed by the 11th US Circuit Court of Appeals. The appeals court concluded that Alabama’s nitrogen procedure most likely violated the Eighth Amendment.
The state appealed to the Supreme Court, which upheld the decisions blocking Alabama from using the nitrogen protocol against Lee. The 6-3 decision came without an explanation, making it an unusual intervention by the high court in an execution case.
Alabama Attorney General Steve Marshall subsequently maintained that the state would pursue Lee’s death sentence.
“I’m prepared to do whatever is necessary to see Mr. Lee’s lawful sentence carried out,” Marshall said.
US District Judge Emily Marks later determined that the state could use lethal injection because the injunction specifically prohibited Alabama’s nitrogen protocol.
After Governor Kay Ivey announced a new execution date, Lee’s lawyers accused Alabama of attempting to revive a method it had previously agreed not to use.
“After losing twice in federal court, Alabama now revives the very lethal injection method it promised to abandon,” Lee’s lawyers said. “Alabama isn’t complying with the Constitution. It’s trying to outrun it.”
Lee’s legal team has again approached the Supreme Court in an effort to stop the lethal injection.
Alabama has argued that Lee’s own legal challenges altered the circumstances of the case and justified the state’s decision to return to lethal injection.
“It is Lee who has changed positions,” the state argued. “He challenged the very method he elected. Now, having won permanent injunctive relief, he insists that the State must either ‘revise the Protocol’ (precisely how, he does not specify) or ‘proceed by firing squad’ (unauthorized in Alabama) to carry out his judicial execution.”
Austin Sarat, a political science and law professor at Amherst College who studies executions, said Lee’s supporters could see the repeated legal challenges as an effort to postpone the execution.
However, Sarat said Alabama could also consider changing its nitrogen procedure instead of resorting to lethal injection, which officials had previously agreed was not an option for Lee.
“There’s a possibility that Alabama can’t make it work,” Sarat said of a constitutionally sound nitrogen hypoxia protocol. “But you offered a choice. When we make a contract and enter into an agreement, the whole purpose is to bind us to perform against all future possibilities.”
Marshall’s office did not respond to a request for comment Wednesday. He has previously said he remains committed to seeking justice for Ellis and Thompson and their families.
The case dates back to December 12, 1998, when Lee, then 21, visited Jimmy’s Pawn Shop with his brother and cousin. He reportedly told staff he was looking at wedding rings for his girlfriend.
Authorities said Lee left the shop before returning minutes later carrying a sawed-off shotgun. Ellis and Thompson were fatally shot, while another employee, Helen King, was wounded.
Ellis had become known decades earlier as a country singer and Elvis Presley impersonator who performed under the name Orion. His story was later documented in the 2015 film Orion: The Man Who Would Be King.
King recalled in the documentary how she pretended to be dead while Lee struggled with the cash register.
“I don’t know why somebody would do that to somebody so nice as Jimmy,” she said. “He made you feel like you’re family.”
Lee was convicted in 2000. Although most jurors recommended life imprisonment without parole, the judge imposed a death sentence through judicial override, a practice Alabama prohibited in 2017. The ban did not extend to earlier cases.
Lee’s supporters have asked Governor Ivey to commute his sentence, but she has declined to do so.
After spending almost three decades on death row, Lee has expressed remorse and said his Christian faith has given him a sense of redemption.
“I don’t fear dying, and nothing like that, because I know where I would be,” he said, referring to heaven.
