For a decade, Alabama death row inmate Jeffrey Lee has resisted execution by lethal injection. Scheduled for September 17, this method persists because the state’s attempt to use nitrogen hypoxia, which Lee preferred, was blocked. Alabama’s inability to prove nitrogen hypoxia’s constitutional validity is the core issue. The 11th Circuit Court of Appeals deemed the method potentially harmful and cruel. As Alabama hasn’t corrected this, its stance to revert to lethal injection is concerning.
In 2016, Lee challenged Alabama’s lethal injection protocol, claiming it risked extreme pain. By 2018, after offering nitrogen hypoxia as an option, the state and Lee agreed to drop the lawsuit, contingent upon execution by nitrogen hypoxia. When Alabama promised, “will carry out,” it committed clearly to this method. However, the state now aims to execute Lee by lethal injection.
Lee returned to court, arguing that the agreement to use nitrogen hypoxia was a basis for dismissing his lethal injection challenge. He relied on the state’s commitment to execute him by his chosen method. Legal details specify that lethal injection is unavailable unless nitrogen hypoxia is deemed unconstitutional by a major court, which hasn’t occurred.
Federal District Judge Emily Marks recently ruled against Lee, citing a “change in essential facts” due to a ruling on nitrogen hypoxia’s constitutionality. Yet, the protocol was flawed when adopted, and the ruling only acknowledged it. Judge Marks’ decision also reflects concern for the victims’ need for sentence enforcement. Delays ensue as Alabama must develop a valid nitrogen hypoxia protocol. Yet, the state’s failure should not excuse its obligations.
The state promised a choice of execution methods, holding responsibility for each method’s legal adequacy. Failure in this process warrants delay as a consequence. Marks’ ruling seemingly overlooks state accountability. Unless Alabama fulfills its promises to Lee, executing him under alternate terms remains unjust.
Austin Sarat holds the position of William Nelson Cromwell Professor at Amherst College.
Leave a Reply