In a turn of events in Montgomery, Alabama, state officials are seeking to proceed with the execution of Jeffery Lee using lethal injection, following judicial setbacks regarding the use of nitrogen gas. This request to the Alabama Supreme Court comes on the heels of a decision that prevented the state from utilizing nitrogen as a method of execution.
The Alabama Attorney General’s office swiftly moved to obtain a death warrant for Lee, convicted of a double homicide during a 1998 robbery, after their initial plan to employ nitrogen gas was blocked. This legal maneuver occurred just hours after the state’s nitrogen execution strategy was halted, reflecting ongoing debates over execution protocols.
State attorneys asserted, “In sum, ADOC has not been barred from executing Lee, only from executing him by nitrogen hypoxia.” This statement underscores that while the nitrogen method is off the table, other execution methods remain available.
Lee’s legal representatives have yet to issue a comment on the state’s latest motion. The Alabama Supreme Court will soon see a response from Lee’s attorneys as they engage with this ongoing legal battle.
The U.S. Supreme Court’s recent decision upheld a lower court’s injunction, which found that Alabama’s nitrogen gas protocol violated the constitutional protection against cruel and unusual punishment. Despite this, the injunction does not prohibit the state from utilizing alternative methods such as lethal injection or the electric chair to carry out Lee’s execution.
A spokesperson for Alabama Attorney General Steve Marshall declined to comment Friday, citing the pending litigation. Marshall on Thursday said he would “never stop seeking justice” for Lee’s victims.
“The State is prepared to do whatever is necessary to see Mr. Lee’s lawful sentence carried out,” Marshall said Thursday.
Rulings raise questions about nitrogen executions
The development came after a week of legal rulings that cast doubt on the future of nitrogen executions, a method the state began using in 2024. It involves strapping a respirator to a person’s face and replacing breathable air with pure nitrogen gas, causing death from lack of oxygen.
Lee filed a lawsuit in 2025 challenging the constitutionality of the state’s nitrogen protocol. U.S. District Judge Emily C. Marks, after holding a three-day bench trial, initially ruled the method constitutional. However, a three-judge appellate panel on Monday reversed part of her conclusions and sent the case back. Marks issued a new finding Tuesday that the state’s execution protocol violates the Eighth Amendment and permanently enjoined the state from using it to execute Lee.
The state asked the U.S. Supreme Court to stay the injunction so Lee’s execution could go forward Thursday night. The court on Thursday declined to do so. The high court voted 6-3 and did not explain its reasoning. Three of the conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — said they would grant Alabama’s request to lift the injunction and let the execution go forward.
The Supreme Court decision was only a ruling on Alabama’s emergency request to stay or lift the injunction. The court has not made a merits decision on the constitutionality of using nitrogen gas, said Robin Maher executive director of the Death Penalty Information Center. However, Maher said there is now a very significant ruling by a district judge that “this method, as Alabama has chosen to use it, is unconstitutional.”
“Anyone else who’s facing a potential execution in Alabama, in which the state intends to use nitrogen gas, will argue that the very same equities that resulted in Alabama being prohibited from using it in Mr. Lee’s case should also prohibit the state from using it in their case,” Maher said.
Lee was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson while robbing a pawnshop on Dec. 12, 1998. Prosecutors said Lee entered Jimmy’s Pawnshop with a sawed-off shotgun and shot Ellis, the owner of the store, and Thompson, a store employee.
Future of nitrogen executions remain uncertain
Nitrogen has been used in eight executions in the United States — seven times in Alabama and once in Louisiana. Lee was scheduled to be the ninth.
Alabama could appeal the case back to the Supreme Court, which so far has never ruled a state’s execution method unconstitutional.
Deborah W. Denno, a professor at Fordham Law School, said it’s difficult to predict what will happen.
“What seems pretty clear to me is that Alabama is going to have a very hard time carrying out a nitrogen hypoxia execution. It’s basically three courts telling you they can’t do that,” Denno said.
The Alabama Supreme Court recently authorized a nitrogen execution for another Alabama inmate, Michael Taylor. His lawyers asked the court to recall the warrant in the wake of what happened with Lee’s case. His lawyers wrote they don’t suggest the Supreme Court’s “denial of emergency relief constitutes a ruling on the merits of the State’s appeal” but said the state shouldn’t move ahead for now.