Alabama came to the Supreme Court on Thursday morning, asking the justices to allow the execution of Jeffery Lee to proceed as scheduled on Thursday night. The lower courts have barred the state from using nitrogen hypoxia to execute Lee, calling that method – in which a mask is placed over the prisoner’s face and he breathes nitrogen until he passes out and then dies because of the lack of oxygen – “likely unconstitutional.” But Alabama’s solicitor general, A. Barrett Bowdre, told the justices that “the risk of ‘breathing difficulty or breathing discomfort’ from nitrogen hypoxia does not rise to the level of a severe pain that violates the” Eighth Amendment’s ban on cruel and unusual punishment.

In a filing submitted on Thursday afternoon, Lee’s lawyers urged the justices to deny the state’s request. His lead counsel, Paige Sharpe, argued that the order prohibiting the state from using nitrogen hypoxia “can and should be reviewed through the ordinary appellate process. What cannot be corrected—what no subsequent ruling can undo—is an execution by unconstitutional means, carried out before the appellate process concludes.”

Lee was convicted of the 1998 robbery and murders of a pawn shop owner and employee. The jury at Lee’s trial recommended, by a vote of 7-5, to sentence him to life in prison without the possibility of parole, but the judge at Lee’s trial overrode that recommendation and sentenced Lee to death.

Alabama asks Supreme Court to allow execution using nitrogen gas | SCOTUSblog