2023: Death penalty uncertainty in Alabama
Two 2022 called-off execution attempts have led to a top-to-bottom internal review of the Alabama death penalty process
By Ivana Hrynkiw
BIRMINGHAM, Ala. — When the clock struck midnight on Sept. 22 and again on Nov. 17, everything changed for the future of executions in Alabama.
The midnight mark came after prison workers couldn’t start intravenous lines for the two men who were set to die on those nights. Those issues followed two other controversial executions the state carried out earlier in the year.
This year was a tumultuous one for the death penalty in Alabama for several reasons: For the national attention the state received after the two started-but-not-completed executions, for Alabama’s memorable trips before the U.S. Supreme Court, and for the governor ordering a temporary halt to all executions by lethal injection.
In 2022, the state executed two people and started executions for two others. Those two men faced similar fates, when workers from the Alabama Department of Corrections couldn’t start an IV in time for the execution to proceed. State rules dictate that executions—performed at William C. Holman Correctional Facility in Atmore—must begin by midnight on the day noted in the state’s execution warrant.
For both Alan Eugene Miller and Kenneth Eugene Smith, the state called off the executions just before the clock struck midnight.
Alabama officials faced tough questions about what happened during those hours. Much of that time, for both men, was spent behind closed doors, unseen by anyone except state workers. The men each later claimed in court documents they spent hours being poked with needles by several workers trying to start IVs, by workers whose qualifications for the job remain unknown.
A federal judge ordered evidence from both of those execution attempts to be preserved.
Between the individual executions, the way the ADOC and Gov. Kay Ivey reacted, and national trends, capital punishment in Alabama is likely to be a contentious topic in 2023.
In 2022, the first man executed was Matthew Reeves, who was imprisoned for the 1996 killing of Willie Johnson in Selma. He was executed on Jan. 27, despite claims he was intellectually disabled.
A court-ordered stay of execution was lifted in his case around 7:25 p.m. by the U.S. Supreme Court, and the procedure began at 9:03 p.m.
Justice Elena Kagan wrote in the court’s dissent that Reeves had cognitive limitations and has the same reading ability as an elementary-school child, citing one expert who testified that Reeves’s “reading comprehension was at the 1st grade level.”
His intellectual disability prevented him from changing his execution method in 2018 with Alabama Death Row inmates had the opportunity to do so by reading and signing a form, his lawyers argued.
“Matthew’s intellectual disability meant he was childlike in many ways, and I cared about him much like my own child. He was my responsibility and I loved him,” wrote his attorney in an op-ed.
The second was Joe Nathan James Jr. James, 50, was put to death July 28 for the slaying of Faith Hall in 1994. Hall, who had once dated James, was harassed by James before he fatally shot her inside her friend’s apartment, court records show.
But the victim’s family fought to keep the execution from happening, saying that James’ death wouldn’t heal their pain and bring back the 26-year-old mother of two.
“If you were to tell me executing him would bring my mom back... but she’s not coming back,” Hall’s daughter Toni Hall Melton said. “You take his life, you’re not bringing her back. You’re doing this to another family... That’s not justice at all.”
James was set to be put to death at 6 p.m. on the night of his execution, but the prison did not transport media witnesses to Holman until 6:33 p.m. After a delay of more than two hours, with media witnesses waiting in a prison van, the execution began at 9 p.m. and the death warrant was read at 9:03 p.m. James’ eyes were closed for the entire procedure, and he had no last words when asked by the warden.
His official time of death was 9:27 p.m.
While media witnesses were waiting in the van outside of Holman’s Death Row, inmates inside stared out the windows from their cells. One inmate hung four pieces of paper in his window with handwriting that read, “This is a murder” on the top page.
The fourth paper, which was added while media witnesses watched, read: “Victim family says no.”
Alabama Department of Corrections Commissioner John Hamm did not provide a reason for the lengthy delay, saying “we are very deliberate in our process and making sure everything goes according to plan. So if that takes a few minutes or a few hours, that’s what we do. So, there was nothing out of the ordinary, but we just made sure we carried out the court order.”
Hamm said James was not sedated prior to the procedure; a prison spokesperson later couldn’t confirm if he was conscious. Court records later stated James received no intramuscular sedation, but did not elaborate on other types of sedatives.
Following the official state autopsy, James’ body underwent a private autopsy that sparked calls of mistreatment by prison workers as they searched for a vein during the execution. However, the physician who performed the private autopsy and the physician who observed it disagreed over what the second autopsy showed. The physician who performed the second autopsy agreed with what the official one found: There were no signs of abuse from the corrections department.
Next was the execution of Alan Eugene Miller, set to die on Sept. 22 for the August 5, 1999 shooting spree that left three men dead in Shelby County. After a lengthy, back-and-forth legal battle, Miller’s execution was allowed to proceed by the U.S. Supreme Court. The nation’s highest court issued their ruling about 9 p.m. that night, leaving nearly three hours for the procedure to happen.
But Miller did not die that night.
Court records later revealed that prison workers couldn’t start the IVs needed for the three-drug lethal injection cocktail, citing issues accessing the 57-year-old’s veins. Alabama law requires the procedure to begin by midnight on the night of the execution, meaning the IVs must be set up and the execution ready to begin. The state ran out of time, said officials with ADOC.
The execution was called off at about 11:30 p.m.
After months of legal wrangling following the execution attempt, the Alabama Attorney General’s Office made a deal with Miller, agreeing to not execute him by lethal injection and only killing him via nitrogen hypoxia.
Nitrogen hypoxia is a newly approved, but not-yet-tested method of execution in Alabama, one where inmates inhale nitrogen until they asphyxiate and die from lack of oxygen. Several other states in the nation have also approved it as a means of execution, but no state has tried it.
Alabama could become the test case for the nation, but the schedule is unclear. Alabama has said for months that it was “close” to having a protocol finalized to start the nitrogen hypoxia executions, but no timeline has ever been publicly released. Recently, Alabama Attorney General Steve Marshall said Alabama is getting closer to being ready for nitrogen hypoxia executions, but also declined to give an estimated time.
Miller’s desire to die by that untested method—he’s long argued his fear of needles and his poorly accessible veins—had been the basis of his court case prior to the execution date.
Kenneth Eugene Smith was the last person to have an execution date set in Alabama, and he was set to die on the night of Nov. 17. One of the 57-year-old’s legal argument’s ahead of his set execution was that the ADOC would have difficulty finding his veins, subjecting him to pain and an outcome similar to Miller’s.
Ultimately, that was true for the man convicted for his part in the 1988 murder-for-hire of a Colbert County pastor’s wife.
Smith’s execution was called off just before midnight, after, according to Hamm, prison officials tried for an hour but could not complete the procedures to find access to Smith’s veins. Officials did gain access to one vein and tried to perform a central line procedure—or a more invasive way to access veins instead of setting up an IV—but did not have time to complete it in time for the midnight deadline.
Later, Smith’s attorneys argued he had been strapped to a gurney for four hours before the execution was called off.
What’s changing moving forward
On Nov. 21, the governor announced a halt to executions, calling for a “top-to-bottom” internal review of the process. “For the sake of the victims and their families, we’ve got to get this right,” said Ivey in a press release announcing the moratorium. “I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here.”
Two of the attempts in 2022 were called off when time expired. In December, Ivey penned a letter to the Alabama Supreme Court, asking the justices to change Alabama’s longstanding rule that executions are restricted by court order to a single day. The governor’s letter mentioned that other states and the federal government allow for longer periods of time to execute an inmate in the case of a court-ordered stay; meaning, a ‘solution’ to the time crunch Alabama often faces on execution nights.
The proposal, which was released by Ivey’s office in a press release, calls for adding this sentence to the current rule about executions: “If the date designated in the execution warrant passes by reason of a stay of execution, or due to a delay in the execution process caused by a stay of execution, then a new date shall be designated promptly by the Commissioner of Corrections.”
The proposal included sections of law from the federal government, California, Georgia, Kentucky, and New York. In each state’s cited law, there was a highlighted section illustrating an extended time period for executions, all similar to which Ivey pushed for in her letter to the court.
But the proposal didn’t note that only one of the mentioned states actually executes people on a regular basis. And the federal government currently has a moratorium on executions.
In a recent press conference reacting to Ivey’s announcement about the moratorium, Marshall noted that Alabama has executed 12 inmates since he became attorney general in February 2017. He said he is confident the state can carry out the procedure, blaming recent problems on what he called “frivolous legal claims” by lawyers for the inmates.
The state attorney general also said the scope of the investigation needed to be limited and fast. “This needs to be expedited quickly because we have victims’ families right now that are asking the question of when we’ll be able to seek that next date. I need to be able to give them answers.”
He also mentioned that the word “moratorium” was unexpected. “And I will tell you that that characterization came as a great surprise to me. Because there’s only two parties involved in setting an execution in Alabama. That’s me as attorney general and our Alabama Supreme Court,” Marshall said.
Despite the pause, Alabama continues to make greater use of death row than any other state in the country. No state has more people awaiting execution on a per capita basis. For every 100,000 Alabamians, there are 3.3 people on death row.
The next closest state, Nevada, had just 2.1 death row prisoners per 100,000 residents.
The Death Penalty Information Center said in its year-end report, “2022 could be called ‘The Year of the Botched Execution’ because of the high number of states with failed or bungled executions. Seven of the 20 execution attempts were visibly problematic—an astonishing 35%—as a result of executioner incompetence, failures to follow protocols, or defects in the protocols themselves.”
According to the center’s report, national public support for capital punishment remained close to historic lows. It cited Gallup’s 2022 Crime Survey, which showed support for capital punishment held at 55%— one percentage point above the 50-year low of 54% in 2021. It’s a winning percentage for groups who oppose the death penalty.
In Alabama, there haven’t been any publicized polls noting peoples’ opinions on the death penalty, and the topic only came up in Montgomery when Amendment Three was put on the November ballot. Statewide Amendment 3 said governors must notify the victim’s family and the attorney general before commuting or granting a reprieve in a death sentence. It was easily approved by voters.
While Marshall said any investigation into the state’s death penalty should be limited, DPIC Executive Director Robert Dunham said the Alabama investigation needs to be conducted independently instead of internally.
“The Alabama Department of Corrections has a history of denying and bending the truth about its execution failures, and it cannot be trusted to meaningfully investigate its own incompetence and wrongdoing,” Dunham said.