Alabama set to execute Jeffery Lee by lethal injection after nitrogen execution is blocked

The state correctional facility in Atmore, Ala., houses more than 150 death row inmates.Michael Palmer / ZUMA Press Wire via Reuters fileShareAdd NBC News to GoogleSept. 17, 2026, 7:00 AM EDTBy Erik Ortiz and Abigail BrooksA rare move by the Supreme Court prevented Alabama from executing prisoner Jeffery Lee with nitrogen gas in June. But if Lee believed the surprise ruling would afford him a reprieve from the execution chamber, he was wrong.

Alabama intends to put him to death Thursday evening by lethal injection, setting up a legal challenge because he didn’t choose such a method and the state initially agreed not to use it.

Barring another last-minute court intervention, Lee, 49, is scheduled to be executed for the fatal shootings of two people in a 1998 pawnshop robbery near Selma: store owner Jimmy Ellis, an acclaimed Elvis Presley impersonator, and his ex-wife Elaine Thompson, who also worked at the store. Lee’s lawyers insist he isn’t trying to permanently halt his execution but wants the state to apply the method he chose in a way that doesn’t violate the constitutional ban on cruel and unusual punishment.

Lee has also asked to die by firing squad as an alternative, although Alabama doesn’t authorize it.

Jeffery Lee was sentenced to death for the fatal shootings of two people during a 1998 robbery. Alabama Department of Correction via APIn 2018, Lee agreed to be put to death by nitrogen hypoxia, in which a person breathes the gas through a mask apparatus and is deprived of oxygen. He elected it years before Alabama had even developed a nitrogen protocol. As part of a legal settlement, Alabama swore off executing him via lethal injection, which was the subject of a state review in 2022 after past executions failed but remains the primary execution method.

Since early 2024, when the state pioneered the use of nitrogen gas, seven inmates have been put to death in that manner.

Witnesses at those various executions have described prisoners’ heaving for long periods and convulsing and writhing against their restraints on the gurney.

The family of Kenneth Smith, the first person who was executed by nitrogen, watched from the execution chamber at the state prison in Atmore as Smith was denied oxygen. The execution took 15 minutes, far longer than the state had predicted.

“It was the awfullest thing I’ve ever seen in my whole life,” Smith’s son, Steven Tiggleman, said Wednesday. “You got a scuba mask strapped to your face, and they’re suffocating you to death.”

During the execution of Anthony Boyd, who in October was the last person put to death with nitrogen gas in Alabama, it appeared to take longer than usual, witnesses said; one media witness reported Boyd gasping for air more than 225 times.

The Rev. Jeff Hood, who served as spiritual adviser to Smith and Boyd, said their executions weren’t as sanitized as people were led to believe.

“Nitrogen doesn’t put a man to sleep. It makes him drown in a room full of air,” he said Wednesday. “Nitrogen hypoxia is dead because of Jeffery Lee.”

Drawing from the previous nitrogen executions, Lee last year sued to stop Alabama’s use of nitrogen in his case, arguing that it induces “conscious suffocation” that “is cruel and unusual because it superadds terror and pain during the execution.” Lee asked to die instead by firing squad, which Alabama doesn’t authorize.

The case moved through the courts, with both district and appeals courts ruling in Lee’s favor. The 11th U.S. Circuit Court of Appeals found that nitrogen executions most likely violate the Eighth Amendment’s ban on cruel and unusual punishment.

The state appealed, but the Supreme Court upheld the lower courts’ rulings that block Alabama from using its nitrogen hypoxia protocol. The justices, in a 6-3 split, gave no reason for the decision, which was notable because the high court seldom stops executions.

Add to GoogleAlabama death row prisoner fighting execution speaks out amid legal battle02:36State Attorney General Steve Marshall said in a statement at the time that he was “prepared to do whatever is necessary to see Mr. Lee’s lawful sentence carried out.” U.S. District Judge Emily Marks agreed that Alabama could execute Lee by lethal injection because the federal injunction involves only its nitrogen protocol.

​“After losing twice in federal court, Alabama now revives the very lethal injection method it promised to abandon,” Lee’s lawyers said in a statement after Gov. Kay Ivey set a new execution date for this month. “Alabama isn’t complying with the Constitution. It’s trying to outrun it.”

Lee’s legal team has gone back to the Supreme Court to stop his execution via lethal injection. In its response, the state said his lawsuits created “a change in essential facts” that should allow corrections officials to return to using lethal injection.

“It is Lee who has changed positions,” the state argued. “He challenged the very method he elected. Now, having won permanent injunctive relief, he insists that the State must either ‘revise the Protocol’ (precisely how, he does not specify) or ‘proceed by firing squad’ (unauthorized in Alabama) to carry out his judicial execution.”

Proponents of capital punishment may point to the varied litigation filed by Lee as nothing more than a delay tactic, said Austin Sarat, a political science and law professor at Amherst College in Massachusetts who writes about botched executions. But Alabama, he added, also has the ability to revise its nitrogen protocol rather than use a method to execute Lee that officials previously agreed was off the table.

“There’s a possibility that Alabama can’t make it work,” Sarat said of a constitutionally sound nitrogen hypoxia protocol. “But you offered a choice. When we make a contract and enter into an agreement, the whole purpose is to bind us to perform against all future possibilities.”

Marshall’s office didn’t respond to a request for comment Wednesday. He has previously said he would continue to seek justice for the victims and their families.

Jimmy Ellis, a former Elvis Presley impersonator, was killed in his pawnshop in Orrville, Ala., in 1998.Courtesy Office of the Alabama Attorney GeneralLee was 21 when he entered Jimmy’s Pawn Shop on Dec. 12, 1998, with his brother and cousin, saying he was looking at wedding rings for his girlfriend. He browsed the display, then left. Minutes later, authorities said, he re-entered with a sawed-off shotgun, fatally shot Ellis and Thompson and wounded another employee, Helen King.

In the 1970s and ’80s, Ellis gained notoriety as a mask-wearing, country-singing Elvis impersonator who went by the stage name Orion. His life and death were covered in the 2015 documentary “Orion: The Man Who Would Be King.”

In the film, Helen King described how she pretended to be dead on the floor as Lee fumbled with the register. “I don’t know why somebody would do that to somebody so nice as Jimmy,” she said. “He made you feel like you’re family.”

A member of Ellis’ family declined to comment this week about Lee’s planned execution.

Lee was found guilty in 2000. While a majority of jurors voted that he get life without parole, the judge instead sentenced him to death in a practice known as “judicial override,” which Alabama banned in 2017. Previous cases like Lee’s weren’t included.

His supporters have called on Ivey to commute his sentence, but she has said she wouldn’t grant Lee clemency.

Lee has been on death row for nearly three decades and has expressed remorse for his actions. He has told NBC News that he has found redemption through his Christian faith.

“I don’t fear dying, and nothing like that, because I know where I would be,” he said, referring to heaven.

Erik OrtizErik Ortiz is a senior reporter for NBC News Digital focusing on racial injustice and social inequality.

Abigail BrooksAbigail Brooks is a producer for NBC News.