Alabama is trying a death penalty bait-and-switch

For a decade, Alabama death row inmate Jeffrey Lee has been clear that he does not want to be executed by lethal injection. But that is what awaits him on September 17.

He faces that prospect because the state has been enjoined from using nitrogen hypoxia, the alternative execution method he preferred, to put him to death. Having failed to show that its nitrogen hypoxia protocol is constitutionally acceptable, Alabama wants a do-over, to force Lee to die by lethal injection as a result of its own failure. It should not get one.

Alabama should only be able to put Lee to death if it can fix nitrogen hypoxia’s constitutional defects.

In June, the 11th Circuit Court of Appeals found that Alabama’s nitrogen hypoxia execution protocol “presents a ‘substantial risk of serious harm’ — severe pain over and above death itself” and would be unconstitutionally cruel. Alabama has done nothing to address that issue.

Moreover, given Alabama’s recent dismal history of botched lethal injection executions, neither he nor anyone else should have to die by that method.

In 2016, Lee filed a lawsuit challenging the constitutionality of Alabama’s lethal injection protocol. In that litigation, Lee argued that “Alabama’s three-drug lethal injection protocol ‘creates a substantial risk of excruciating and cruel pain” to himself.

Two years later, after Alabama offered death row inmates the opportunity to choose to die by nitrogen hypoxia rather than lethal injection, Lee and the state agreed........

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