Alabama Court Removes Key Appeal Protection for Death Sentenced Defendants

The Alabama Supreme Court announced a change to its rules of appel­late pro­ce­dure on January 12, 2023, elim­i­nat­ing auto­mat­ic plain error review for tri­al errors in death penal­ty cas­es. This new rule removes a sig­nif­i­cant safe­guard for cap­i­tal defen­dants’ rights, which had been in place since Alabama rein­stat­ed the death penal­ty in 1976. Without the review, cap­i­tal defen­dants who were erro­neous­ly con­vict­ed or sen­tenced could spend many more years on death row before the error is discovered. 

The same day, the court also announced that, in response to the state’s series of botched exe­cu­tions in 2022, the gov­er­nor will now be able to set the win­dow of time in which an exe­cu­tion can occur. Rather than address­ing why prison offi­cials could not set an IV line with­in the pre­vi­ous­ly allowed win­dow of time, the change sim­ply extends the amount of time avail­able for the exe­cu­tion to be performed.

“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,” said Bryan Stevenson, founder and exec­u­tive direc­tor of the Equal Justice Initiative. He not­ed that near­ly 40% of the rever­sals in Alabama death penal­ty cas­es occurred under the court’s plain error review, which was auto­mat­ic in all death-penalty cases.

Under the pre­vi­ous rule, on direct review, the Alabama Court of Criminal Appeals would read the tran­scripts of all cas­es that result­ed in death sen­tences to see if there were errors that “[had] or prob­a­bly [had] adverse­ly affect­ed the sub­stan­tial right of the appel­lant,” regard­less of whether the defendant’s lawyer had object­ed to the error. Under the new rule, the court will no longer be required to read the tran­scripts from all cap­i­tal cas­es for plain error. 

In dis­sent, Justice Greg Shaw, who pre­vi­ous­ly served on the Alabama Court of Criminal Appeals and had con­duct­ed such plain error reviews, wrote that he saw ​“no com­pelling rea­son” to change the rule, that the court is ​“well-suit­ed” to con­duct such a review, and that ​“if there is reversible error in a case in which the death penal­ty has been imposed, it should be detect­ed and resolved soon­er rather than lat­er.” [empha­sis orig­i­nal] He point­ed out that because both state and fed­er­al post-con­vic­tion lit­i­ga­tion can occur many years after the tri­al, if an error is detect­ed at that point, the pros­e­cu­tion could face dif­fi­cul­ties relit­i­gat­ing a case due to the pas­sage of time. He also empha­sized that in post-con­vic­tion pro­ceed­ings, some claims are barred if they were not raised at tri­al or on direct appeal.

In a sep­a­rate dis­sent, Justice Kelli Wise, who also pre­vi­ous­ly served on the Alabama Court of Criminal Appeals, wrote ​“I under­stand that plain-error review on direct appeal places a bur­den on the Court of Criminal Appeals and requires the use of judi­cial resources. However, in these cas­es, the defen­dants’ very lives are at stake, and I believe that such cas­es are enti­tled to height­ened review on direct appeal.”

In an opin­ion sup­port­ing the new rule, Justice James Mitchell wrote that in cas­es where a defen­dant has been erro­neous­ly con­vict­ed and their lawyers did not chal­lenge or pre­serve the error, and the court did not dis­cov­er it on direct appeal because it did not con­duct a plain error review, the defen­dant has a ​“pow­er­ful tool” to cor­rect that fail­ure: a post-conviction petition. 

However, accord­ing to the Alabama Post-Conviction Relief Project, Alabama does not auto­mat­i­cal­ly pro­vide coun­sel for state post-con­vic­tion lit­i­ga­tion. After a defen­dant files a post-con­vic­tion peti­tion in state court, then they might be appoint­ed coun­sel, but only if it ​“appears that coun­sel is nec­es­sary in the opin­ion of the judge.” As a result, many cap­i­tal defen­dants do not have any legal assis­tance draft­ing or lit­i­gat­ing their post-con­vic­tion peti­tions. Furthermore, state post-con­vic­tion appeals can take many years to resolve, and erro­neous­ly con­vict­ed defen­dants can spend years on death row await­ing a post-con­vic­tion rem­e­dy with­out the assis­tance of a lawyer. After exhaust­ing state reme­dies, a defen­dant might be able to file a fed­er­al habeas peti­tion, but due to fed­er­al pro­ce­dur­al rules, claims that were not raised in state pro­ceed­ings are often for­feit in the fed­er­al sys­tem, so even an obvi­ous error from the tri­al could be default­ed because it was not raised pri­or to that point.

Alabama has some of the least strin­gent pro­ce­dur­al safe­guards for cap­i­tal defen­dants. It is the only state which allows judges to impose the death penal­ty on a defen­dant based on non-unan­i­mous jury sen­tenc­ing ver­dicts, a prac­tice which cor­re­lates to high­er rates of wrong­ful con­vic­tions. Alabama judges are elect­ed and are more like­ly to impose a death ver­dict over a non-unan­i­mous jury sen­tence in elec­tion years. After tri­al, the last time a defen­dant is guar­an­teed coun­sel in state pro­ceed­ings is dur­ing their direct appeal, where there is no longer a guar­an­tee of plain error review. The Equal Justice Initiative report­ed that the rule was changed with­out input from the Alabama Appellate Rules Committee, which would typ­i­cal­ly research and report on the poten­tial effects of pro­posed rule changes.

Under the change to the state’s exe­cu­tion pro­ce­dure, the gov­er­nor will now set the win­dow of time in which an exe­cu­tion can occur. This change is a response to the two botched exe­cu­tion attempts last year, where the exe­cu­tion teams failed to estab­lish IV lines to admin­is­ter lethal injec­tion drugs with­in the six-hour win­dow pre­vi­ous­ly pro­vid­ed by Alabama death war­rants. There are no restric­tions on the governor’s dis­cre­tion in the rule. Governor Kay Ivey specif­i­cal­ly request­ed that the court extend the time­frame for exe­cu­tions after the two botched exe­cu­tions, but Stevenson said that while some states give longer than a day, no state allows the gov­er­nor this broad amount of dis­cre­tion, and that it will allow prob­lem­at­ic exe­cu­tions go on for longer.