The Supreme Court has declined to overturn a lower court ruling that blocked Alabama from using nitrogen gas to carry out a death penalty. In an unsigned order on the case, the Court wrote, “The application for stay or vacatur presented to Justice Thomas and by him referred to the Court is denied. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the application for stay or vacatur.”
Alabama Attorney General Steve Marshall said in a statement that the “ruling is a miscarriage of justice, not for us, but for Jimmy Ellis and Elaine Thompson, who Jeffery Lee brutally and senselessly murdered and left on the floor of their place of business.” He said he is “also keeping their families in mind, many of whom were prepared to witness the final act of justice be served.”
“I want their families to know that we will never stop seeking justice for Jimmy and Elaine,” Marshall noted. “The State is prepared to do whatever is necessary to see Mr. Lee’s lawful sentence carried out.”
U.S. District Judge Emily Marks previously ruled that Lee has “shown by a preponderance of the evidence that the protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
Lee’s lawyer argued in a filing submitted to the Supreme Court that the order prohibiting Alabama from using nitrogen hypoxia “can and should be reviewed through the ordinary appellate process. What cannot be corrected—what no subsequent ruling can undo—is an execution by unconstitutional means, carried out before the appellate process concludes.”
In April, the Department of Justice strengthened the federal death penalty by updating its protocol to expand execution methods, such as the firing squad. Discussing execution methods, the report explains that the Supreme Court has “never rejected a method of execution as unconstitutional.”
“The additional manners of execution that BOP should consider adopting include the firing squad, electrocution, and lethal gas—each of which the Supreme Court has found to be consistent with the Eighth Amendment,” the report adds.
