Governor Kay Ivey has set a 30-hour window beginning at midnight September 17 for the execution of Alabama death row inmate Jeffery Lee. The state plans to use lethal injection after federal courts blocked his previously scheduled execution by nitrogen hypoxia.
Lee was convicted of capital murder in the 1998 killings of Jimmy Ellis, owner of Jimmy’s Pawn Shop near Orrville, and employee Elaine Thompson during a robbery.
Prosecutors said Lee entered the business with a sawed-off shotgun, fatally shot Ellis and Thompson and stole cash and firearms before fleeing.
A Dallas County jury voted 7-5 to sentence Lee to life without parole, but the judge overrode the recommendation and imposed the death penalty under Alabama’s former judicial override law.
Lawmakers abolished judicial override in 2017, but they did not make the change retroactive, leaving several inmates, including Lee, on death row.
Lee was scheduled to be executed June 11 by nitrogen hypoxia after selecting the method in 2018. The execution was halted after the U.S. Supreme Court declined to lift a federal court injunction barring Alabama from executing him through nitrogen hypoxia.
The injunction followed a ruling by U.S. District Judge Emily Marks, who found that Alabama’s nitrogen hypoxia protocol, as applied to Lee, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
Marks later ruled that the injunction applied only to nitrogen hypoxia and did not prevent the state from carrying out Lee’s sentence by lethal injection.
Lee’s attorneys argued that the state should not be allowed to execute him by another method because of an agreement reached when he selected nitrogen hypoxia in 2018.
They contend Alabama agreed that Lee would be executed by nitrogen gas rather than the state’s three-drug lethal injection protocol and that reverting to lethal injection would violate the agreement.
State attorneys argued that Alabama lacked a protocol, legislative authorization and sufficient staffing to use the alternative method Lee proposed—the firing squad. They also maintained that the federal court orders addressed only nitrogen hypoxia, leaving lethal injection and electrocution available under state law.
Following the Supreme Court’s decision, Attorney General Steve Marshall’s office asked the Alabama Supreme Court to authorize a new execution by lethal injection, arguing that the federal injunction did not invalidate Lee’s death sentence.
The court granted the request, clearing the way for Ivey to set a new execution date.
The case is the first in which a federal court has blocked Alabama from using nitrogen hypoxia on a condemned inmate while allowing the state to pursue execution through another authorized method.
Lee’s attorneys are expected to continue challenging the execution before September 17. They argue that the state should not carry out a death sentence imposed through judicial override after a jury recommended life without parole.
