Alabama moved to execute 49-year-old Jeffery Lee by lethal injection Thursday evening after the Supreme Court refused to intervene, even though the state had previously agreed not to use that method on him.
The execution capped a years-long legal saga in which Lee first chose nitrogen gas, then successfully argued in federal court that the state's nitrogen protocol amounted to cruel and unusual punishment, and finally watched Alabama pivot back to the very method it had settled away from. The Supreme Court cleared the path hours before the scheduled execution, denying Lee's request without explanation.
Lee had spent nearly three decades on death row for the 1998 shooting deaths of pawnshop owner Jimmy Ellis and his ex-wife Elaine Thompson near Selma, Alabama. He was 21 at the time of the crime. A jury had voted for life without parole, but the trial judge overrode that recommendation and imposed a death sentence, a practice Alabama later banned in 2017, though it did not apply the change to cases like Lee's.
The legal twists in Lee's case trace back to 2018, when he elected nitrogen hypoxia as his execution method. Alabama had not yet developed a nitrogen protocol at the time. As part of a legal settlement, the state agreed it would not execute Lee by lethal injection.
But after Alabama pioneered the use of nitrogen gas for executions beginning in early 2024, the results drew intense scrutiny. Kenneth Smith became the first person executed by the method. His death took 15 minutes, far longer than the state had predicted. Anthony Boyd, the last inmate put to death with nitrogen gas in Alabama, appeared to take even longer. One media witness reported Boyd gasping for air more than 225 times.
Lee sued to block Alabama from using nitrogen on him. He argued the gas induces "conscious suffocation" that "is cruel and unusual because it superadds terror and pain during the execution." Both U.S. District Court and the 11th U.S. Circuit Court of Appeals ruled in his favor. The appeals court found that nitrogen executions "most likely violate the Eighth Amendment's ban on cruel and unusual punishment."
The Supreme Court upheld those rulings in a 6-3 decision, giving no reason for its order. Seven inmates had been put to death by nitrogen gas since early 2024. Lee's case effectively ended the practice in Alabama.
Rev. Jeff Hood, who served as spiritual adviser to both Smith and Boyd, told NBC News on Wednesday:
"Nitrogen doesn't put a man to sleep. It makes him drown in a room full of air. Nitrogen hypoxia is dead because of Jeffery Lee."
Kenneth Smith's son, Steven Tiggleman, who witnessed his father's execution from the chamber, described the experience in stark terms:
"It was the awfullest thing I've ever seen in my whole life. You got a scuba mask strapped to your face, and they're suffocating you to death."
With nitrogen gas off the table, Alabama Attorney General Steve Marshall moved to execute Lee by lethal injection, the method the state had previously agreed not to use. U.S. District Judge Emily Marks sided with the state, ruling that the federal injunction blocking Lee's execution applied only to the nitrogen protocol, not to lethal injection.
Gov. Kay Ivey then set a new execution date for Lee and declined to grant clemency.
Lee's legal team called the reversal a breach of the state's word. In a statement, his lawyers said:
"After losing twice in federal court, Alabama now revives the very lethal injection method it promised to abandon. Alabama isn't complying with the Constitution. It's trying to outrun it."
Alabama fired back in court filings, arguing that Lee's own litigation had created the impasse. The state contended that Lee "challenged the very method he elected" and that his lawsuits amounted to "a change in essential facts" justifying the return to lethal injection.
"It is Lee who has changed positions. He challenged the very method he elected. Now, having won permanent injunctive relief, he insists that the State must either 'revise the Protocol' (precisely how, he does not specify) or 'proceed by firing squad' (unauthorized in Alabama) to carry out his judicial execution."
Lee had indeed requested a firing squad as an alternative. Alabama does not authorize that method.
Austin Sarat, a political science and law professor at Amherst College in Massachusetts who studies failed executions, framed the dispute as a contract question. He acknowledged the state might face a genuine practical problem but said that did not erase the commitment Alabama made.
"There's a possibility that Alabama can't make it work. But you offered a choice. When we make a contract and enter into an agreement, the whole purpose is to bind us to perform against all future possibilities."
The Supreme Court's refusal to intervene on the lethal injection question, again without explanation, left Lee with no remaining avenue to delay the execution.
Lee entered Jimmy's Pawn Shop near Selma, Alabama, on December 12, 1998, along with his brother and cousin. He fatally shot the shop's owner, Jimmy Ellis, and Ellis's ex-wife, Elaine Thompson. A third employee, Helen King, was wounded but survived by pretending to be dead on the floor.
Ellis had gained a measure of fame decades earlier as a mask-wearing, country-singing Elvis Presley impersonator who performed under the stage name "Orion." A 2015 documentary, "Orion: The Man Who Would Be King," chronicled his life and death. King appeared in the film.
"I don't know why somebody would do that to somebody so nice as Jimmy," King said. "He made you feel like you're family."
Lee was found guilty in 2000. The jury's majority voted for life without parole, but the presiding judge used a now-banned procedure called judicial override to impose the death sentence instead. Alabama abolished the practice in 2017, but the legislature did not apply the change retroactively to inmates already sentenced under the old rule.
Lee, now 49, had previously told NBC News he had come to terms with his fate. "I don't fear dying, and nothing like that, because I know where I would be," he said.
Alabama's shift back to lethal injection is not without its own complications. The state had paused executions after a third failed lethal injection attempt and conducted a review of the process in 2022. That history is part of what led Alabama to develop nitrogen gas as an alternative in the first place.
Now, with nitrogen ruled most likely unconstitutional and lethal injection revived despite a settlement promising otherwise, the state finds itself in a position where every available method carries legal or practical baggage. Marshall's office did not respond to a request for comment on Wednesday.
More than 150 inmates remain on death row at the state correctional facility in Atmore. How Alabama intends to carry out future executions, and under what protocol, remains an open question the state has not publicly addressed.
When a state makes a deal to take a method off the table, then circles back to that same method the moment its alternative falls apart, the word for that isn't justice, it's convenience. Accountability has to mean something even when the person on the other side of the agreement is someone nobody wants to defend.
