Alabama Supreme Court opens window to carry out death sentences after string of troubled executions

After a trio of troubled executions by lethal injection in Alabama, the state Supreme Court ruled in favor of a request from Gov. Kay Ivey, R, asking that the prison system have more time to carry out death sentences. It also eliminated automatic review for trial errors in death penalty cases.

Alabama’s highest court announced the changes to appellate procedure last Friday. The 6-3 ruling abolished the previous requirement that all executions be completed within one day, with the death warrant expiring at midnight, granting the governor power to set the window of time for the execution.

The divided court also eliminated an automatic “plain error review,” which is where the Alabama Court of Criminal Appeals automatically reviewed death penalty cases for a clear error at trial, even if the defense lawyer did not object.

The justices said judges on the appeals court may undertake the review, but are no longer required to do so.

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The governor’s office described the time window change as a “win for justice,” with supporters adding that the appeal change would ease the burden on the court system.

“I view this as a win for justice. As we initially interpret the order, it secures an extended time frame, which was a primary request of the governor’s,” Ivey spokeswoman Gina Maiola said in an email. She said the governor’s staff will review the order with the prison system.

On the other hand, Equal Justice Initiative founder Bryan Stevenson, a well-known death penalty lawyer, spoke out against the changes, stating to repeal a crucial avenue of review is “shocking.”

“I think the combination of these two rules increases the likelihood that we’re going to see more wrongful convictions, more unjust sentences and more cruelty and potential torture,” Stevenson told the Associated Press.

Stevenson said nearly 40% of reversals in Alabama death penalty cases have taken place under the plain error review, which had been in place since the state reinstated the death penalty in 1976.

Commenting on the time frame change, Stevenson said while other states do allow for longer time periods to carry out an execution, no state gives a governor complete power in the process. He is concerned that the change will allow “already problematic executions” to go on for longer.

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Justice Jay Mitchell wrote in a concurring opinion on Jan. 12 that plain error review was “unnecessary” and “at odds with the common law, federal law, and the laws of our regional sister states.” 

He said the change will relieve the court’s burden because they will no longer be required to “scour the record in search of such errors, nor will it be compelled to analyze claims of error.” Mitchell said lawyers for death row inmates can present the issues in other appeals.

“Today’s amendment returns plain-error review in death-penalty cases to its proper role and scope. In doing so, it brings our Rules of Appellate Procedure into closer alignment with the common law and the approach of other jurisdictions,” Mitchell wrote. “The amendment also streamlines the appellate-review process and, as a result, promotes the fair and efficient administration of justice.”

Justice Kelli Wise and Justice James “Greg” Shaw, both of whom are former members of the Court of Criminal Appeals, dissented in the decision.

Wise said she could not support a complete repeal despite the time required.

“In these cases, the defendants’ very lives are at stake, and I believe that such cases are entitled to heightened review on direct appeal,” she wrote.

Shaw said he has conducted many plain error reviews of records in death penalty cases, and he sees “no compelling reason” to repeal the review.

“It concerns me that no longer will the fact that a plain-error review occurred on direct appeal add to the confidence in a capital conviction and sentence of death. In my view, a thorough plain-error review of a death-penalty case on direct appeal serves the interests of both the State and the defendant,” he wrote.

Since September, Alabama has called off two separate executions after state officials couldn’t find a suitable vein for lethal injection before the death warrants expired. In July, the state completed the execution of Joe Nathan James Jr., but only after a similar access problem caused a three-hour delay.

The state also had a failed execution in 2018.

Ivey announced a “top-to-bottom” review of execution procedures in November 2022.

The Associated Press contributed to this report