Alabama Asks the Eleventh Circuit to Let the Execution Proceed

With Jeffery Lee's execution window opening tomorrow at midnight, Alabama filed its appeal this morning asking the Eleventh Circuit to reverse the district court's ruling — or at minimum, stay it long enough to let the appeal proceed.

The State's brief makes two main arguments on the merits, and a third argument on why the courts should let the execution happen regardless.

On the merits, the State's primary target is Mr. Lee's expert, Dr. James Williams, the firearms and ballistics specialist who testified that death by firing squad is quick and painless. The State argues the district court should never have trusted him. Dr. Williams was retained by the family of Mikal Mahdi — an inmate executed by firing squad in South Carolina last year in what witnesses described as a prolonged and botched execution — and never disclosed that relationship until it came out on cross-examination. The State argues his entire methodology was shaped by that conflict: he excluded South Carolina's protocol from his analysis, dismissed the Mahdi execution as an irrelevant anomaly, and offered no scientific basis for his conclusion that four bullets rather than three would have produced a different outcome. The State also points out that Dr. Williams has never visited Holman Correctional Facility, doesn't know the dimensions of its execution chamber, and has no basis for opining that it could be readily converted for a firing squad — yet the district court relied heavily on his testimony that it could.

The State's second merits argument is that it has legitimate reasons to reject the firing squad that the district court brushed aside too quickly. Alabama doesn't currently have a suitable facility — both the former Commissioner and the Warden testified the existing chamber is too small and the walls are unfortified cinderblock. And finding five volunteer marksmen capable of meeting the Utah protocol's demanding marksmanship standards is a genuine operational problem, not a pretext.

On the equities, the brief is blunt to the point of remarkable. The State argues that Mr. Lee elected nitrogen hypoxia in 2018 specifically to avoid lethal injection, watched six inmates be executed by the method he chose, waited until three days before his statute of limitations ran to file suit, and admitted in deposition he had no explanation for the delay. The brief quotes his own deposition testimony that getting shot looks like it hurts — that people "scream or moan" — before arguing that his preference for firing squad is not genuine. It concludes: "Method-of-execution litigation is a game to inmates like Lee — a high-stakes game, to be sure, but a game nonetheless."

The macro argument running through all of it is this: the Supreme Court has never invalidated any method of execution. Not hanging. Not the gas chamber. Not electrocution. Not lethal injection. All of those carry real risks of pain. If one to three minutes of air hunger and emotional distress is unconstitutional, the State argues, then every method of execution is — and that, it insists, cannot be what the Eighth Amendment means.

That argument is worth examining carefully, because the history is more complicated than the State lets on. As legal scholar Austin Sarat documented in Gruesome Spectacles: Botched Executions and America's Death Penalty, methods weren't abandoned because courts found them constitutional — they were abandoned, in large part, precisely because constitutional challenges were gaining traction and botched executions were generating political and legal pressure that states chose to avoid rather than litigate to conclusion.

The gas chamber is the most instructive example. In Fierro v. Gomez, the Ninth Circuit did find that execution by lethal gas was unconstitutionally cruel and unusual, holding that its factual findings of extreme pain lasting several minutes "require the conclusion that execution by lethal gas is cruel and unusual." California responded not by defending the method but by changing its statute to make lethal injection the default — mooting the case before the Supreme Court had to rule on the merits. The method wasn't upheld. It was retired to avoid the ruling. Similarly, Nebraska's own Supreme Court found in 2008 that electrocution inflicts "intense pain and agonizing suffering" and declared the electric chair unconstitutional — calling it "a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber." Nebraska switched to lethal injection.

The pattern Sarat identifies across American execution history is one of methods failing in practice, generating constitutional pressure, and being quietly replaced before courts were forced to deliver a final verdict. The State's argument that "no method has ever been invalidated" is technically accurate at the Supreme Court level — but it reflects survivorship bias, not constitutional vindication. Methods that were producing the clearest evidence of unconstitutionality tended to disappear before SCOTUS had to say so definitively.

That context matters here. A federal district court has now found that nitrogen hypoxia causes one to three minutes of severe, conscious suffering and declared it unconstitutional. Whether it follows the path of the gas chamber — abandoned under constitutional pressure before a final reckoning — or becomes the first method the Supreme Court formally strikes down remains to be seen.

The Eleventh Circuit will have to respond today. Whatever it decides, the clock is running.