Last week, the Supreme Court handed an unusual — if temporary — victory to an Alabama man on death row. As Steve Vladeck, a Georgetown law professor, writes, this is the first time in over five years that this Court refused to “un-block an execution that a lower court had put on hold,” at least in a case that arose on the Court’s enigmatic shadow docket.
The case, Lovelace v. Lee, involves an utterly ghoulish legal dispute. Alabama was scheduled to execute Jeffery Lee, the inmate at the heart of this case, by asphyxiating him with nitrogen gas. Lee claims that this method of execution will cause him too much suffering, and he filed a lawsuit seeking to be killed instead by a firing squad.
Lovelace is not, however, the only time in recent memory that the Court has ruled in favor of someone on death row. Just last month, the justices decided not to decide Hamm v. Smith, a case that tested the Court’s Republican majority’s commitment to the longstanding principle that people with an intellectual disability may not be sentenced to death.
Although the Court heard oral arguments in Hamm, it ultimately dismissed the case without issuing a decision, thus leaving in place a lower court ruling saving a man from execution.
So what’s going on here? Is the Court growing soft on the death penalty? The short answer is that it is too soon to tell, and the Court’s decision in Lovelace may have been grounded in a procedural concern that Alabama can eventually overcome.
That said, the nondecision in Hamm suggests that at least some of the Court’s Republican members may have made peace with a pair of two-decade-old decisions holding that certain individuals — juvenile offenders and people with intellectual disabilities — may not be executed.
The Lovelace decision, meanwhile, suggests that three more recent Supreme Court decisions, which seemed designed to shut down lawsuits challenging how a state may execute someone sentenced to die, may actually permit those lawsuits to move forward in limited circumstances.
The Roberts Court remains very supportive of the death penalty, and it remains to be seen whether the temporary order in Lovelace amounts to anything more than a fleeting bar to a single execution. But Lovelace should give death row inmates, their loved ones, and capital defense lawyers some hope that, even if they cannot save these inmates’ lives, they may be able to make their executions less brutal.
Hamm and Lovelace are as different as two death penalty cases can be
Though Joseph Clifton Smith, the man on death row in Hamm, and Jeffrey Lee, who faced execution in Lovelace, both have the rare distinction of surviving an encounter with the Roberts Court, their cases have fairly little in common legally.
Smith alleged that he has an intellectual disability and thus is categorically intelligible for the death penalty. In the era before President Donald Trump took office, Justice Anthony Kennedy was the moderate conservative swing vote on the Court, and Kennedy was often sympathetic to capital defendants who claimed that they cannot be executed because of their “diminished capacities.”
Kennedy, however, was not particularly sympathetic to death row inmates who challenged the method a state planned to use to execute him. In Glossip v. Gross (2015), for example, Kennedy joined his fellow Republicans in rejecting a claim that Oklahoma’s lethal injection protocol was unconstitutional because it inflicted too much pain on people being executed.
In large part because of Kennedy’s disparate approaches to these two areas of the law governing capital punishment, the Court’s decisions governing who can be executed are fairly well-developed and longstanding — Atkins v. Virginia (2002), the decision holding that people with an intellectual disability may not be executed, is nearly a quarter-century old.
The Court’s decisions governing which methods a state may use to kill someone, however, read like they were written to discourage anyone from challenging those methods.. Indeed, before Lovelace, it appeared doubtful that this Court would ever rule in favor of someone who believes that the state wants to use a needlessly cruel method to execute them.
Before Lovelace, the Supreme Court consistently rejected challenges to methods of execution
Until fairly recently, lethal injection was the preferred method used by most states that still perform executions (the death penalty is not lawful in about half of US states), and those states typically relied on a three-drug cocktail. The first drug was supposed to render the person unconscious and prevent them from feeling pain, the second was a paralytic, and the third killed by stopping the heart.
Beginning in the 2010s, however, death penalty states struggled to obtain the first of these drugs — the anesthetic — in large part because many pharmaceutical companies refused to sell their drugs to states for use in executions. Many of these companies are also located in Europe, and the European Union forbids the exportation of drugs for such a purpose.
Because they were unable to obtain reliable anesthetics, many states started using less-reliable painkillers in their executions. A botched 2014 execution in Oklahoma used this sort of less-effective drug, and the inmate appeared to suffer extraordinary pain for as much as 43 minutes before he finally died of a heart attack.
But the Supreme Court, or at least, its Republican majority, showed no sympathy for people on death row who feared that they were going to be tortured to death. In Glossip v. Gross (2015), the Court’s Republicans held that “because some risk of pain is inherent in any method of execution,” the Constitution “does not require the avoidance of all risk of pain.”
The Court feared that, if the Constitution were read to give people sentenced to die too much protection against excessively painful executions, that “would effectively outlaw the death penalty altogether.”
The Court’s Republicans built on this holding in Bucklew v. Precythe (2019), which said that a method of execution is only unconstitutional if it seeks to “superadd terror, pain, or disgrace” to an execution. Justice Neil Gorsuch’s majority opinion also listed a few examples of execution methods that would fail this test: “disemboweling, quartering, public dissection, and burning alive.”
So, unless a state planned to use the kind of methods typically associated with torture scenes in movies set in the Middle Ages, Bucklew suggested that they were free to do whatever they wanted.
That said, these cases did announce a legal standard that people on death row could theoretically use to challenge a method of execution. To prevail, they must show that the state plans to use a method that creates a “substantial risk of severe pain,” and they must propose an alternative method that is “feasible and readily implemented” and that would significantly reduce this risk.
To date, the Supreme Court has never held a particular method of execution unconstitutional.
Lovelace tests whether the rule announced in Glossip and Bucklew was designed in good faith
Glossip and Bucklew imposed such a heavy burden on death row inmates that it is reasonable to read those decisions and conclude that their real purpose is to cut off challenges to methods of execution altogether. Both decisions force people on death row to choose how they want to die. And Bucklew’s reference to barbaric methods such as disembowelment or burning people alive suggests that inmates face an exceedingly high bar if they want to claim that a particular execution method presents a “substantial risk of severe pain.”
Nevertheless, in Lovelace, Lee and his attorneys decided to call the Supreme Court on its bluff. And he’s thus far been successful in lower courts.
Right now, Alabama plans to execute Lee by strapping a mask to his face and filling it with nitrogen gas. Without oxygen, Lee will eventually die.
At trial, however, Lee introduced expert testimony that this method of execution would be very slow, and would cause him tremendous suffering. One of Lee’s experts testified that he could remain conscious for three to seven minutes once the execution begins. For much of this period, another expert claimed, Lee would experience “air hunger,” an experience that “can be far worse than pain” and that “ranks among the most distressing experiences that human beings can endure.”
Meanwhile, a third expert testified that, if Lee were executed by bullets fired into his “cardiac bundle,” the area of the body that includes the heart and several major blood vessels, he would lose consciousness within three to five seconds and die shortly thereafter. This expert also testified that Lee will lose consciousness before his brain can process the sensation of being shot, and thus he will feel no pain.
The lower courts determined that this testimony was enough to sustain Lee’s claim under Glossip and Bucklew. No matter what, Lee will be killed. But the lower courts determined that he may not be killed by nitrogen asphyxiation, in large part because a firing squad would be less cruel.
It remains to be seen what the Supreme Court will make of this case. The Court’s brief Thursday night order in Lovelace was temporary, and it consists of two sentences — one simply saying that the lower court orders remain in effect for now, and another signaling that Justices Clarence Thomas, Samuel Alito, and Gorsuch would have allowed Lee to be killed by nitrogen asphyxiation.
It is fairly likely, moreover, that the Court only decided to temporarily delay Lee’s execution because it wanted to buy itself more time to fully review his case — the case came to the Court on its shadow docket, a mix of emergency motions and other matters that the justices often decide on a very tight timeframe. There was also an unusual procedural issue in the case that may have prevented the Court from deciding it on its shadow docket.
Nevertheless, the temporary order in Lovelace does suggest that at least some of the justices who joined Glossip and Bucklew may actually be willing to strike down a particular method of execution. Still, Lee faces a difficult road ahead. If the Court does hold that nitrogen asphyxiation is unconstitutional, it will be the first time that it rejects a particular method of execution.
Even in the absence of such a decision, many death penalty states are already shifting their methods of execution — either to avoid a repeat of the botched 2014 execution or to ward off legal challenges. South Carolina executed a man by firing squad as recently as 2025, after a condemned man chose this method over two other alternatives, lethal injection or the electric chair. Lee’s challenge arose after he chose to be executed by nitrogen gas over lethal injection — Alabama didn’t give him the option of choosing a firing squad.
Many death penalty states, in other words, appear to be preempting a future Supreme Court decision limiting methods of execution by offering condemned inmates the most terrible menu imaginable. The idea being that, if a condemned prisoner chooses a particular method of execution, it is much harder for them to complain about it in court.
