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The Supreme Court<\/a> rejected Alabama’s attempt to execute Jeffery Lee with nitrogen gas<\/a> after lower courts stopped the state from executing him with that method.<\/p>\n

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to side with the state, according to the court’s unexplained order<\/a> on Thursday night denying the state’s emergency application.<\/p>\n

On Tuesday, a Trump-appointed judge in Alabama blocked the state<\/a> from executing Lee under its nitrogen-hypoxia<\/a> protocol. U.S. District Judge Emily Marks found that Lee proved the state’s method violates the Eighth Amendment’s ban on cruel and unusual punishment.<\/p>\n

She emphasized that although she was issuing a permanent injunction against the nitrogen method, she wasn’t banning the state from executing Lee. She said the record showed his alternative proposal of the firing squad “significantly reduces a substantial risk of severe pain as compared<\/em> to<\/em> nitrogen-hypoxia.”<\/p>\n

Under precedent<\/a> adopted by the Supreme Court’s GOP-appointed majority, an inmate who challenges an execution method as unconstitutional must propose an alternative method that is feasible, readily implemented and significantly reduces a substantial risk of severe pain.<\/p>\n

Having scheduled Lee’s execution for Thursday, Alabama officials moved to lift Marks’ injunction in an effort to proceed as planned. Procedurally, they first had to ask Marks herself for relief. In their motion<\/a> to the judge, they said she downplayed the risks of the firing squad, as well as the state’s concern about finding willing and able executioners for the shooting method.<\/p>\n

State officials further said the fact that they scheduled Lee’s execution for Thursday “should have sunk his claim.” They said that “however easy or hard it would be to implement a firing squad in the abstract, there’s no support for the view that it could be done two days<\/em> from the Court’s decision that it satisfies the Eighth Amendment test.” <\/p>\n

Marks rejected the motion<\/a> to lift her injunction, noting that the state’s urgent motion did “little more than repeat the arguments it made previously,” which she also had rejected. She added that the state had no right to complain about the timing because it was the state that set Lee’s execution while litigation was pending.<\/p>\n

A divided three-judge panel on the U.S. Court of Appeals for the 11th Circuit declined to disturb<\/a> Marks’ ruling. The panel’s majority recounted that a judge’s permanent injunction like the one Marks issued is entitled to deference and can be overturned only if the judge abused her discretion. With that in mind, the majority said her findings were “amply supported by the evidence presented.”<\/p>\n

And noting that courts reviewing motions for urgent relief consider the “irreparable harm” at stake, the majority observed: “It goes without saying that Mr. Lee would suffer irreparable harm if he were executed pursuant to a method that the district court has found unconstitutional.” <\/p>\n

On the other hand, the majority said the state’s preferred Thursday execution timing “is not a magical date” and that “the injury to the State caused by a delay would not be irreparable because the district court’s injunction allows it to execute Mr. Lee by any other authorized method (including lethal injection or the electric chair).”<\/p>\n

Trump-appointed Judge Robert Luck was the panel dissenter. He began by recalling that Lee was sentenced to die for robbing and murdering Jimmy Ellis and Elaine Thompson 26 years ago. “Unlike his victims, Lee was allowed to choose his method of execution,” he added, referring to Lee’s initial choice of nitrogen hypoxia as an alternative to lethal injection during a previous round of litigation.<\/p>\n

“For as long as we’ve had an Eighth Amendment, the Supreme Court has never held that a state’s method of execution qualifies as cruel and unusual under the Eighth Amendment,” Luck wrote. “Because we shouldn’t do so here, I would grant the state’s motion to stay the injunction.”<\/p>\n

Lee’s jury had recommended a life sentence, but the judge sentenced him to death under Alabama’s “judicial override”<\/a> option, which has since been abolished.<\/p>\n

The state cited Luck’s dissent in seeking emergency relief<\/a> from the Supreme Court on Thursday. Officials told the high court that if the lower court ruling in Lee’s favor stands, it would be “unprecedented in American history.” The state said it would not only “portend the first-ever permanent ban on a legislatively enacted method” but would also “expand the concept of cruelty well beyond the bounds of the Eighth Amendment.”<\/p>\n

Georgetown University law professor Steve Vladeck, an expert on the Supreme Court’s so-called shadow docket<\/a>submitted an amicus brief<\/a> opposing the state. He said Alabama was trying to do something procedurally that it shouldn’t be allowed to do. He explained that unlike in other emergency challenges that states have brought to the justices, Alabama wasn’t challenging a temporary execution stay issued by a lower court, but rather a permanent injunction.<\/p>\n

“After all,” Vladeck said in the brief, “allowing Alabama to execute Mr. Lee through a grant of emergency relief would necessarily frustrate this Court’s ability to conduct plenary review of the district court’s final, permanent injunction.”<\/p>\n

Highlighting that point, Lee’s lawyers told the justices<\/a> that the case was “in a procedural posture unlike every previous method of execution challenge that this Court has considered.” They noted that unlike other emergency litigation in capital cases, “this case comes to the Court following a full three-day bench trial on the merits — the first such trial anywhere on the constitutionality of nitrogen asphyxiation.”<\/p>\n

They said Lee wasn’t challenging his death sentence or the state’s ability to execute him but rather “only the method that Alabama intends to employ.” They said the state wanted to make the case moot by executing Lee “using an unconstitutional and permanently enjoined method,” but that the state hadn’t “cited a single case<\/em> in which this Court has intervened in a capital case in such an extraordinary way.”<\/p>\n

Subscribe to the Deadline: Legal Newsletter<\/a> for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.<\/strong><\/p>\n<\/div>\n

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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.<\/p>\n<\/div>\n
Read More<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"
The Supreme Court rejected Alabama’s attempt to execute Jeffery Lee with nitrogen gas after lower courts stopped the state from executing him with that method. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to side with the state, according to the court’s unexplained order on Thursday night denying the state’s emergency application. On Tuesday, […]<\/p>\n","protected":false},"author":2,"featured_media":24112,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[],"class_list":["post-24111","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-trump"],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/posts\/24111","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/comments?post=24111"}],"version-history":[{"count":0,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/posts\/24111\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/media\/24112"}],"wp:attachment":[{"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/media?parent=24111"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/categories?post=24111"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bluelightnews.com\/category\/politics\/wp-json\/wp\/v2\/tags?post=24111"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}