Alabama Governor Halts Executions After Latest in Series of Execution Failures

Alabama Governor Kay Ivey (pic­tured) has halt­ed exe­cu­tions and ordered a ​“top-to-bot­tom review” of the state’s exe­cu­tion pro­ce­dures, five days after fail­ures by cor­rec­tions per­son­nel to estab­lish an intra­venous exe­cu­tion line caused Alabama to call off the November 17, 2022 exe­cu­tion of Kenneth Smith.

The botched exe­cu­tion of Smith marked the third time since 2018 and the sec­ond time in two months that Alabama had called off an exe­cu­tion in process. In addi­tion, on July 28, 2022, exe­cu­tion­ers took three hours to set an IV line before putting Joe Nathan James to death, the longest botched lethal-injec­tion exe­cu­tion in U.S. history,

As ADOC had after each of the botched and abort­ed exe­cu­tions, Ivey insist­ed that ADOC was not respon­si­ble for the prob­lems. In a November 21, 2022 state­ment released in con­nec­tion with her announce­ment, Ivey said, ​“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.” Nonetheless, Ivey said, ​“For the sake of the vic­tims and their fam­i­lies, we’ve got to get this right. … I sim­ply can­not, in good con­science, bring anoth­er victim’s fam­i­ly to Holman look­ing for jus­tice and clo­sure, until I am con­fi­dent that we can car­ry out the legal sentence.” 

A news release from the governor’s office said that Ivey had asked Alabama Attorney General Steve Marshall to with­draw two motions filed by pros­e­cu­tors ask­ing the Alabama Supreme Court to set an exe­cu­tion date for James Barber and to resched­ule Miller’s exe­cu­tion. The release said that ​“The gov­er­nor also requests that the attor­ney gen­er­al not seek addi­tion­al exe­cu­tion dates for any oth­er death row inmates until the top-to-bot­tom review is complete.”

Marshall with­drew the pend­ing motions lat­er that day.

The governor’s news release was accom­pa­nied by a state­ment from Department of Corrections Commissioner John Hamm in which he assert­ed that “[e]verything is on the table — from our legal strat­e­gy in deal­ing with last minute appeals, to how we train and pre­pare, to the order and tim­ing of events on exe­cu­tion day, to the per­son­nel and equip­ment involved. The Alabama Department of Corrections is ful­ly com­mit­ted to this effort and con­fi­dent that we can get this done right.”

Legal reform and social jus­tice advo­ca­cy groups praised Ivey’s deci­sion to under­take a review, but expressed con­cern about the inde­pen­dence and trans­paren­cy of the process. In a joint state­ment, the Southern Poverty Law Center, Alabama Arise, and Project Hope to Abolish the Death Penalty said, ​“Every gov­ern­ment pro­gram, espe­cial­ly exe­cu­tions, should be trans­par­ent from the start. We are relieved that there will be a review, and dis­mayed that our state won’t sim­ply throw out this archa­ic and unnec­es­sary pun­ish­ment. Among oth­er things, at a min­i­mum this review should assess the toll tak­en on cor­rec­tions work­ers & estab­lish PTSD sup­port for tor­tured pris­on­ers and cor­rec­tions officers alike.” 

The Equal Justice Initiative said, ​“What has hap­pened dur­ing exe­cu­tions in Alabama is uncon­scionable, unnec­es­sary and com­plete­ly avoid­able…. Improved reli­a­bil­i­ty will require state offi­cials to not just blame con­demned pris­on­ers, lawyers and oth­ers who have a right to insist on con­sti­tu­tion­al pro­ce­dures that are not cru­el. It will mean thor­ough­ly exam­in­ing their own pro­to­cols and pro­ce­dures and being less secre­tive and dis­mis­sive of the great respon­si­bil­i­ty they have if they are going to engage in lethal punishment.”

Death Penalty Information Center Executive Director Robert Dunham praised Ivey’s deci­sion but took issue with her attempt to deflect the blame for the exe­cu­tion teams’ fail­ures. ​“Legal efforts aimed at ensur­ing that ADOC exe­cu­tion­ers do not tor­ture pris­on­ers to death are not — and have nev­er been — the cause of ADOC’s ser­i­al fail­ures to time­ly estab­lish exe­cu­tion IV lines. Nor are they the cause of ADOC’s eva­sive­ness, lack of trans­paren­cy, and repeat­ed false state­ments to the media and the pub­lic,” he said. Saying that ADOC ​“can­not be trust­ed to mean­ing­ful­ly inves­ti­gate its own incom­pe­tence and wrong­do­ing,” Dunham called for an independent investigation.

“Alabama should not be car­ry­ing out fur­ther exe­cu­tions until it is will­ing to be account­able for its actions, accept respon­si­bil­i­ty for its fail­ures, and com­mit to truth­ful­ness and trans­paren­cy in any fur­ther exe­cu­tions,” he said.

On November 17, Alabama halt­ed the exe­cu­tion of Kenneth Smith after offi­cials spent an hour attempt­ing unsuc­cess­ful­ly to set an IV line. A sim­i­lar set of prob­lems arose on September 26, when the state also had to call off the exe­cu­tion of Alan Miller. In both cas­es, low­er fed­er­al courts had issued injunc­tions block­ing the exe­cu­tion that the U.S. Supreme Court lift­ed after the exe­cu­tions had been sched­uled to start. The after-hours actions of the Court left the state with less time to car­ry out the exe­cu­tions before the mid­night expi­ra­tion of the pris­on­ers’ death war­rants — though numer­ous oth­er states and the fed­er­al gov­ern­ment had suc­cess­ful­ly con­duct­ed exe­cu­tions in similar circumstances. 

With the U.S. Supreme Court sweep­ing aside seri­ous legal con­cerns in their cas­es, the lives of Smith and Miller were spared only because of the state’s inabil­i­ty to time­ly set intra­venous exe­cu­tion lines. Four years ear­li­er, the state had also failed to exe­cut­ed Doyle Lee Hamm, whose exe­cu­tion was called off after two-and-a-half hours of failed attempts to set an IV line. Hamm had warned the state in advance that IV access would be dif­fi­cult or impos­si­ble due to a con­stel­la­tion of med­ical con­di­tions. Hamm died of can­cer in 2021.

The fail­ures in Smith and Miller’s exe­cu­tions also echoed the state’s botched exe­cu­tion of Joe Nathan James, Jr. on July 28, 2022. The exe­cu­tion took place over the objec­tions of the victim’s fam­i­ly and began with an unex­plained three-hour delay. Despite asser­tions from the Department of Corrections that ​“noth­ing out of the ordi­nary” occurred, autop­sy results showed mul­ti­ple failed attempts to set an intra­venous exe­cu­tion line, punc­ture wounds in Mr. James arm mus­cles that appear to be unre­lat­ed to efforts to insert the IV, mul­ti­ple unex­plained inci­sions, and bleed­ing and bruis­ing around Mr. James’ wrists where he was strapped to the gurney.