For ten years, Jeffrey Lee, an inmate on Alabama’s death row, has opposed execution by lethal injection, yet this method awaits him on September 17. Lee’s preference for nitrogen hypoxia, an alternative execution method, has been impeded by legal challenges. Alabama has not proven that its nitrogen hypoxia procedure meets constitutional standards, prompting a reconsideration of its use.
The 11th Circuit Court of Appeals identified significant concerns with Alabama’s nitrogen hypoxia protocol in June. The court noted it could cause severe pain, making it unconstitutionally cruel. Alabama has not addressed these issues, and given its recent failures with lethal injection executions, concerns persist.
In 2016, Lee contested Alabama’s lethal injection protocol, citing the potential for substantial pain. When offered the option to choose nitrogen hypoxia in 2018, Lee and the state agreed to dismiss his lawsuit. The court recognized this agreement, stating Lee’s execution would be conducted through nitrogen hypoxia, not lethal injection.
“Will carry out,” the agreement stated, confirming the execution method choice.
Despite this agreement, Alabama now proceeds to use lethal injection. Lee has returned to court to uphold the previous arrangement. His legal argument highlights that, based on the earlier agreement, Alabama cannot just abandon it now. Lee claims he relied on the state’s promise of execution by nitrogen hypoxia and faces detriment if executed by lethal injection.
The agreement noted that lethal injection and electrocution were not options if Lee opted for nitrogen hypoxia. Lethal injection would only be considered if courts deemed the alternative unconstitutional, a decision yet to occur according to Lee.
Federal District Judge Emily Marks recently ruled against Lee, allowing Alabama to proceed with lethal injection. She based her decision on a supposed “change in the essential facts,” referring to the June ruling that questioned the protocol’s constitutionality.
However, the protocol was defective from its inception, and the recent court ruling merely acknowledged this. Judge Marks also expressed concerns about the impact on the victims of Lee’s crimes, stressing their interest in timely execution.
Marks suggested that supporting Lee could delay his execution while Alabama develops a new protocol. Nevertheless, the state should have already prepared valid procedures for all lawful execution methods. Any delays reflect Alabama’s oversight.
Until Alabama fulfills its promise, executing Lee remains unjustifiable.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
Copyright 2026 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.