Alabama Attorney General: ​“There Is No Moratorium” On the Death Penalty

During a December 5, 2022 press con­fer­ence, Alabama Attorney General Steve Marshall (pic­tured) dis­cussed the state’s review of its lethal injec­tion process, reject­ing the media’s char­ac­ter­i­za­tion of it as a ​“mora­to­ri­um” on exe­cu­tions and urg­ing that the review be car­ried out quick­ly. Governor Kay Ivey announced a ​“top-to-bot­tom review” of the state’s exe­cu­tion pro­to­col on November 21, 2022, after two exe­cu­tions in a two-month peri­od had to be called off when exe­cu­tion­er were unable to set intravenous lines. 

“I stand before you today to be very clear that, so far as I and my office are con­cerned, there is no mora­to­ri­um nor will there be on cap­i­tal pun­ish­ment in Alabama,” Marshall said. He called for a swift review, say­ing, ​“there is a time­li­ness for this to occur.” ​“In the last few weeks, I’ve seen some pro­nounce­ments that some­how or anoth­er we have a so-called mora­to­ri­um on exe­cu­tions in Alabama,” Marshall said. ​“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.” 

Ivey’s November 21 press release did not use the term ​“mora­to­ri­um,” but explic­it­ly request­ed ​“that the attor­ney gen­er­al not seek addi­tion­al exe­cu­tion dates for any oth­er death row inmates until the top-to-bot­tom review is com­plete.” Later that day, Marshall with­drew two pend­ing motions, which had sought to set an exe­cu­tion date for James Barber and a new exe­cu­tion date for Alan Miller, whose ini­tial September exe­cu­tion was abort­ed. On November 30, the state agreed not to make fur­ther attempts to exe­cute Miller by lethal injec­tion, but may still seek to exe­cute him by nitrogen hypoxia.

Marshall did not direct­ly respond to ques­tions about whether he would refrain from seek­ing addi­tion­al exe­cu­tion dates while the inves­ti­ga­tion was under way. ​“What you sim­ply heard was the gov­er­nor ask for a delay to be able to inves­ti­gate what could be done bet­ter with­in the exe­cu­tion pro­to­col. And so we look for­ward to hav­ing any con­ver­sa­tion with her about that,” he said.

Alabama cor­rec­tions per­son­nel have repeat­ed­ly had dif­fi­cul­ty estab­lish­ing intra­venous lines for lethal injec­tion. In addi­tion to the failed exe­cu­tions of Kenneth Smith on November 17 and Alan Miller on September 22, the state’s July 28 exe­cu­tion of Joe James Jr. was the longest botched lethal injec­tion in U.S. his­to­ry. Nonetheless, Ivey denied that cor­rec­tions per­son­nel were respon­si­ble for those prob­lems. ​“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,” she said. ​“I believe that legal tac­tics and crim­i­nals hijack­ing the sys­tem are at play here.” Marshall shared sim­i­lar sen­ti­ments dur­ing his press con­fer­ence, attribut­ing recent prob­lems to ​“friv­o­lous legal claims by lawyers for the inmates,” accord­ing to reports by AL​.com.

In his press con­fer­ence, Marshall char­ac­ter­ized the review as a ​“a very dis­crete and lim­it­ed inves­ti­ga­tion” that ​“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 did not set a spe­cif­ic time­line for the resump­tion of executions. 

Alabama is the sec­ond state this year to ini­ti­ate a review of its exe­cu­tion pro­to­col. On April 21, Republican Governor Bill Lee stayed the exe­cu­tion of Oscar Smith after learn­ing that cor­rec­tions per­son­nel had failed to com­ply with a require­ment in the state exe­cu­tion pro­to­col that the lethal-injec­tion drugs be test­ed for bac­te­r­i­al endo­tox­ins. Less than two weeks lat­er, on May 2, Lee halt­ed the five remain­ing exe­cu­tions sched­uled to be car­ried out in Tennessee in 2022 and announced that the state had retained for­mer U.S. Attorney Ed Stanton to con­duct an ​“inde­pen­dent review” of Tennessee’s execution protocol.