Last week, the Supreme Court gave an unusual — if temporary — victory to an Alabama man on death row. As Steve Vladeck, a Georgetown law professor, writes, this is it the first time in five years that this Court refused to “prevent the execution which the lower court had stayed,” at least in the case that arose about the Court’s controversy. shadow docket.
the case, Lovelace v. Leeit involves a serious legal dispute. Alabama was scheduled to kill Jeffery Lee, the main prisoner in this case, by asphyxiating him with nitrogen gas. Lee claims that this method of execution will cause him a lot of suffering, and he filed a lawsuit asking to be executed by firing squad instead.
Lovelace however, it is not the only time in recent memory that the Court has ruled in favor of someone on death row. Just last month, the judges decided not to decide Hamm vs. Smitha case that tested the commitment of the Republican Court majority to the long-standing principle that people with mental disabilities cannot be sentenced to death.
Although the Court heard oral arguments Hamit finally dismissed the case without giving a decision, thus leaving the decision of the lower court to save a person from hanging.
So what is going on here? Is the Court growing soft on the death penalty? The short answer is that it is too early to say, and the decision of the Court in Lovelace may be based in procedural concerns which Alabama may eventually win.
That said, indecisiveness in Ham suggests that at least some Republican members of the Court may have made peace with a a pair of decisions of two decades holding that certain people – minor offenders and people with mental disabilities – cannot be executed.
The Lovelace the decision, meanwhile, suggests that three more soon The Supreme Court’s decisions, which seemed designed to shut down the challenged cases how the state can execute a person sentenced to death, it can allow such cases to continue in a limited state.
The Roberts court remains strongly in favor of the death penalty, and it remains to be seen whether a temporary injunction will be entered Lovelace it amounts to nothing more than a short-term bar for a single execution. But Lovelace it should give death row inmates, their loved ones, and death defense attorneys some hope that, even if they can’t save these inmates’ lives, they can make their executions less brutal.
Ham and Lovelace are as different as two death penalty cases can be
Although Joseph Clifton Smith, a man on death row Hamand Jeffrey Lee, who faced execution Lovelaceboth have the rare distinction of surviving to meet the Roberts Court, their cases have little in common in law.
Smith argued that he is mentally retarded and therefore fully eligible for the death penalty. In the era before President Donald Trump took office, Justice Anthony Kennedy was a moderate conservative vote on the Court, and Kennedy often sympathized with capital defendants who argued that they could not be executed because of “reduced capacity.”
Kennedy, however, had no mercy for the death row inmates who protested the method the government planned to use to execute him. In Glossip v. Total (2015)
In large part because of Kennedy’s differing approaches to these two areas of the law governing the death penalty, the Court’s rulings on who can be executed have been well-developed and long-standing — Atkins v. Virginia (2002), the ruling that holds that people with mental disabilities cannot be executed, is almost a quarter century old.
The Court’s rulings on the methods the government can use to kill someone, however, were read as written to discourage anyone from challenging those methods. Lovelaceit seemed doubtful that this Court would ever rule in favor of someone who believed that the government wanted to use an unnecessarily cruel method of execution.
Before LovelaceThe Supreme Court has repeatedly rejected challenges to enforcement methods
Until recently, lethal injection was the preferred method used by many states that still carry out executions (the death penalty is it is not legal in about half of the US states), and those states usually depended on a a cocktail of three drugs. The first drug was supposed to make a person lose consciousness and prevent him from feeling pain, the second was to paralyze, and the third killed by stopping the heart.
Starting in the 2010s, however, death penalty states struggled to obtain the first of these drugs – anesthetic – in large part because many drug companies. they refused to sell their drugs to the states for use in executions. Most of these companies are also located in Europe, and the European Union prohibits the transportation of drugs for such purposes.
Because they could not find reliable anticonvulsants, many states began using less reliable painkillers in their executions. A 2014 botched murder in Oklahoma used this type of ineffective drug, and the inmate was found experience incredible pain for 43 minutes before he died of a heart attack.
But the Supreme Court, or at least, the Republican majority, showed no mercy to people on death row who feared they would be tortured to death. In Glossip v. Total (2015), the Court’s Republicans held that “because some risk of pain is inherent in any course of action,” the Constitution “does not require the avoidance of all risks of pain.”
The Court feared that, if the Constitution were to be read to give death row inmates more protections against excessively painful killings, it would “outlaw the death penalty altogether.”
Republican members of the Court considered this Bucklew v. Precythe (2019), which stated that a method of execution is illegal if it aims to “increase fear, pain, or humiliation” for the killing. Justice Neil Gorsuch’s majority opinion also listed a few examples of execution methods that would fail this test: “dismemberment, dismemberment, public dismemberment, and burning alive.”
So, unless the government plans to use the kind of methods that are usually associated with them scenes of torture in movies set in the Middle Ages, Bucklew they suggested that they were free to do whatever they wanted.
That said, these cases did to declare the legal standard which people on death row could theoretically use to challenge the method of execution. To win, they must show that the government plans to use a method that poses a “significant risk of severe pain,” and must propose an alternative that is “feasible and easily implemented” and that would significantly reduce this risk.
To date, the Supreme Court has never held a particular method of enforcement unconstitutional.
Lovelace examines whether the law was promulgated The shine and Bucklew it was created in good faith
The glow and Bucklew placed such a heavy burden on death row inmates that it is reasonable to read those decisions and conclude that their real purpose is to reduce the challenges of execution methods altogether. Both decisions force people on death row to choose how they want to die. And BucklewThe reference to barbaric methods such as disemboweling or burning people alive suggests that prisoners face a very high standard if they want to claim that a particular method of execution poses a “substantial risk of severe pain.”
However, in LovelaceLee and his lawyers decided to call the Supreme Court on his bluff. And so far he has been successful in the lower courts.
Currently, Alabama plans to kill Lee by tying a mask over his face and filling it with nitrogen gas. Without oxygen, Lee will eventually die.
At trial, however, Lee introduced expert testimony that this course of action would be too slowly, and it would cause him great suffering. One of Lee’s experts testified that he could remain unconscious for three to seven minutes after the execution began. For much of this period, another expert claimed, Lee would suffer from “air hunger,” which “can be worse than pain” and that “is among the most distressing things humans can endure.”
Meanwhile, a third expert testified that, if Lee had been shot in the “cardiovascular system,” the area of the body that includes the heart and several blood vessels, he would have lost consciousness within three to five seconds and died shortly thereafter. This expert also testified that Lee will lose consciousness before his brain processes the sensation of being shot, and thus will not feel pain.
The lower courts ruled that this testimony was sufficient to sustain Lee’s claim under s The shine and Bucklew. No matter what, Lee will be killed. But lower courts ruled that he could not be killed by nitrogen asphyxiation, in large part because a firing squad would be less brutal.
It remains to be seen what the Supreme Court will do about this case. The Court’s brief order Thursday night at Lovelace it was temporary, and so It has two sentences – one simply stating that the lower court’s orders remain in effect for now, and the other indicating that Justices Clarence Thomas, Samuel Alito, and Gorsuch would allow Lee to be executed by nitrogen asphyxiation.
Moreover, it is highly likely that the Court only decided to delay Lee’s execution for a while because it wanted to buy itself more time to fully review his case – the case came to the Court on its shadow docket, a mixture of urgent motions and other issues that judges often decide in a very short time. There was also an unusual procedural issue in a case that may have prevented the Court from ruling on its shadow.
However, a temporary order in Lovelace suggests that at least some of the judges joined The shine and Bucklew may actually be willing to reject a particular course of action. Still, Lee faces a tough road ahead. If the Court holds that nitrogen depletion is illegal, it will be the first time it has rejected a particular method of enforcement.
Even in the absence of such a ruling, many death penalty states are already changing their methods of execution – either to avoid a repeat of the 2014 stalled execution or to avoid legal challenges. South Carolina someone was shot dead most recently in 2025, after the damned chose this path over the other two paths, the lethal injection or the electric chair. Lee’s challenge arose after him chose to be hanged by nitrogen gas instead of lethal injection – Alabama didn’t give him the option to select a firing squad.
Many death penalty states, in other words, appear to be avoiding a future Supreme Court decision that limits the execution methods by giving inmates the worst possible list. The idea being that, if a condemned prisoner chooses a particular method of execution, it is more difficult for them to challenge it in court.
