MONTGOMERY, Ala. - Alabama is pursuing urgent court action to proceed with an execution by nitrogen gas scheduled for Thursday night, requesting that the U.S. Supreme Court overturn a judge's ruling that the procedure breaches the Constitution's prohibition on cruel and unusual punishment.

A federal judge issued a decision on Tuesday declaring Alabama's nitrogen protocol unconstitutional and preventing its application in the case of Jeffery Lee, age 49. Lawyers from the Alabama attorney general's office have filed an appeal against the ruling.

The result of this rapid legal dispute will decide whether Lee's execution advances on Thursday using nitrogen gas. It may also shape the ongoing viability of the execution approach that Alabama introduced in 2024.

"While Alabama defends its execution protocol through the judicial process, the governor stands ready to advance with the scheduled execution," Mike Lewis, a spokesman for Alabama Gov. Kay Ivey, stated in an email.

The procedure requires fitting a respirator mask over the individual's face and substituting breathable air with pure nitrogen gas, leading to death through oxygen deprivation. Nitrogen has been employed in eight executions across the United States - seven in Alabama and one in Louisiana. Lee was set to become the ninth individual executed via this approach.

U.S. District Judge Emily Marks determined on Tuesday, following an appeals court reversal of her prior ruling that upheld the method, that Lee had established by a preponderance of the evidence that the protocol amounts to cruel and unusual punishment under the Eighth Amendment. The 11th U.S. Circuit Court of Appeals, in a 2-1 decision on Wednesday night, denied Alabama's request to pause the ruling. The court had previously described the potential three-minute period for an inmate to lose consciousness as an intolerable duration, considering the likely suffering involved under Alabama's nitrogen hypoxia protocol.

A spokesman for the Alabama attorney general's office confirmed on Wednesday night that the state is now appealing the matter to the Supreme Court. The court has not previously ruled on whether any particular execution method violates the Constitution.

The proceedings have renewed attention on the nitrogen execution approach and the divided opinions surrounding its application.

In earlier Alabama executions using nitrogen, the inmates displayed shaking, tugged at restraints, and showed labored breathing at the outset. In the state's most recent nitrogen gas execution, 30 minutes passed from the moment Anthony Boyd showed effects of the gas until officials closed the viewing room curtain to indicate completion.

The state continues to assert that the method complies with constitutional standards and does not produce greater suffering than alternative execution techniques.

"If nitrogen hypoxia breaches the Eighth Amendment due to risks of anxiety and emotional discomfort, then every other execution method must also violate it, as many involve inherent risks of actual physical pain," state lawyers argued in a Wednesday court filing submitted to the 11th Circuit.

Lee's legal team contends that Alabama is attempting to proceed with an execution method already deemed unconstitutional by the courts. His advocates have called on Ivey to reduce his sentence to life imprisonment, aligning with the recommendation from jurors during his trial.

"Alabama Attorney General Steve Marshall seeks to execute Jeffery Lee under a death sentence rejected by the jury, employing a nitrogen gas method that two federal courts have ruled unconstitutional. This execution carries too many flaws to continue," Lee's lawyers stated.

"We continue to hope that Governor Ivey will take action," they noted further.

A jury found Lee guilty on two counts of capital murder for the deaths of Jimmy Ellis and Elaine Thompson during a pawnshop robbery on Dec. 12, 1998. Prosecutors described how Lee entered Jimmy's Pawnshop armed with a sawed-off shotgun and shot both Ellis, the store owner, and Thompson, an employee.

The jury voted 7-5 in favor of a life imprisonment sentence for Lee. A judge nevertheless overrode that recommendation and imposed a death sentence. Alabama abolished judicial override in 2017, ending the ability of judges to disregard jury sentencing decisions in capital cases. The legislation did not apply retroactively.