But in Lovelace v. Lee, the court declined to step in at Alabama’s request. The case is important for three reasons. First and foremost, it appears to be the first successful constitutional challenge to a specific execution method since the Eighth Amendment’s ratification in 1791. Jeffrey Lee, a death-row prisoner who was convicted of killing two people in 1998, filed a federal lawsuit last year to challenge Alabama’s plan to execute him via nitrogen hypoxia. Alabama adopted the new method in 2018; Lee argues that it would violate the Eighth Amendment’s ban on cruel and unusual punishment.
The state has already killed seven death-row prisoners by this method; Louisiana also executed a man via nitrogen hypoxia last year. Three other states have authorized the method. Proponents describe it as relatively simple and largely painless, even compared to lethal injection. Justice Sonia Sotomayor described it differently in a dissenting opinion last year:
Now imagine for that entire time, you are suffocating. You want to breathe; you have to breathe. But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you. But your body keeps telling you to breathe.
A federal district court judge in Alabama rejected those claims, citing the high threshold for execution-method challenges laid out by the Supreme Court in the 2015 case Glossip v. Gross. (More on that later.) The Eleventh Circuit Court of Appeals reversed that ruling and instead that there would be a “substantial risk of serious harm,” then asked the district court to consider whether Lee’s firing squad recommendation would be viable. The district court concluded that it would be and entered judgment in Lee’s favor.
Instead, execution methods have changed over the years largely due to public pressure and criticism. Hanging was the most common method of execution in the 19th century, but it was often administered by unskilled amateurs. A competent hangman would ensure that the prisoner’s neck snapped at the first drop. More common outcomes were grisly scenes of strangulation or, in rare cases, decapitation.
After the Supreme Court agreed to hear an Eighth Amendment challenge to Florida’s use of electrocution, Governor Jeb Bush called a special session of the state legislature to switch to lethal injection. A three-drug cocktail developed by an Oklahoma medical examiner in the 1970s soon became the most widely used method of killing death-row prisoners in the late 20th century. This form of lethal injection was explicitly sanctioned by the Supreme Court in the 2008 case Baze v. Rees.
The Supreme Court ultimately heard a challenge to Oklahoma’s use of the controversial sedative midazolam in the 2015 case Glossip v. Gross. They were not as receptive to the Eighth Amendment argument as abolitionists had hoped. At oral arguments, Justice Samuel Alito asked whether it was “appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty,” which had “reduced” states to using less reliable drugs like midazolam. That hostile mindset was reflected in the court’s final opinion, which Alito wrote.
Alito apparently disagrees. In Glossip, he subordinated a prisoner’s right to be free from cruel and unusual punishment to the state’s desire to kill prisoners. Because the death penalty is constitutional, he reasoned, “there must be a constitutional means of carrying it out.” Alito borrowed this flawed reasoning from Chief Justice John Roberts, who first expressed it his three-justice plurality opinion in Baze. Glossip marked the first time that a majority of the court embraced it.
That requirement also came from Roberts’s plurality opinion in Baze, where the chief justice laid out a hard-to-overcome standard for challenges to execution methods. “To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain,” Roberts wrote. Showing marginal improvements in safety weren’t enough. Only then would a state’s refusal to adopt the alternative method be sufficient to suspect a desire to inflict cruel and unusual punishment.
Alito even required VRA plaintiffs to produce maps to achieve a state’s stated redistricting goals when they accuse that state of racial gerrymandering, echoing his earlier demand in Glossip for death-row prisoners to describe their preferred way to die when challenging an execution method. There is something deeply unseemly about the Supreme Court forcing litigants to argue against their own interests if they wish to defend their constitutional rights. It smacks of deterrence by humiliation.
Alabama’s challenge was different. Steve Vladeck, a Georgetown University law professor and expert on the shadow docket, warned the justices in a friend-of-the-court brief that the state was asking for something more significant this time. “Alabama’s application wears the familiar costume of a ‘state-on-top’ death penalty application—where a State asks this Court to vacate a lower court’s temporary stay so that an execution may proceed,” he wrote.
The justices did not explain the reasoning for their decision in Thursday’s order. Alabama’s procedural misstep is significant enough, however, that it would not surprise me if the six justices who voted to deny the state’s request did so entirely for the reasons Vladeck described, regardless of their thoughts on the underlying merits of the lower courts’ rulings. Since the justices didn’t explain themselves, however, that would be only speculation on my part.
But that brings me to the third and final thing that’s revealing about this case: three justices still would have sided with Alabama. Alito, along with Justices Clarence Thomas and Neil Gorsuch, indicated in the court’s order that they would have granted Alabama’s motion to stay the lower-court ruling. Since we’re talking about an execution here, that is also effectively a judgment on the merits—Jeffrey Lee could hardly retain counsel or continue appeals from beyond the grave.
That doesn’t stop us from drawing some reasonable inferences. For Roberts, Kavanaugh, and Justice Amy Coney Barrett, their skepticism of death-row inmates has limits and Alabama’s plea to suffocate this particular prisoner to death apparently found them. For the court’s other three conservative justices, there appears to be almost nothing that they are willing to prioritize over a state’s desire to kill someone.
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