Alabama

Alabama

Justices Appear to Favor Prisoner with Dementia in Case Seeking to Block Alabama Execution

The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

Filming Underway for Movie Adaptation of ‘Just Mercy’

Filming for the movie adaptation of Bryan Stevenson's best-selling book, Just Mercy, began August 27, 2018 in Montgomery, Alabama. The film will feature Michael B. Jordan (Creed, Black Panther) as Stevenson and Oscar-winner Jamie Foxx (Ray, Django Unchained) as wrongfully convicted death-row prisoner Walter McMillian. Stevenson, the founder of the Equal Justice Initiative, represented McMillian — a Black man framed for the 1986 murder of an 18-year-old White woman in Monroeville, Alabama — in McMillian's appeal of his conviction and death sentence. Like the book upon which it is based, the movie will tell the story of that representation and McMillian's exoneration from death row. McMillian was convicted in a trial that lasted only a day and a half. The prosecution presented three witnesses who falsely implicated McMillian in the murder. The jury — composed of eleven Whites and one African American — ignored the testimony of six African-American alibi witnesses who had been with McMillian at a church fish fry at the time of the murder. Although the jury convicted McMillian, the jurors recommended that he be sentenced to life. However, the trial judge overrode the jury’s sentencing verdict and instead sentenced McMillian to death. The Alabama Court of Criminal Appeals affirmed the conviction and death sentence on appeal, but Stevenson's investigation revealed that prosecution witnesses had lied and that prosecutors had illegally hidden evidence that proved McMillian's innocence. After Stevenson filed a motion for a new trial, the appeals court on February 23, 1993, reversed McMillian’s conviction and ordered a new trial. One week later, on March 2, 1993, prosecutors dismissed the charges against McMillian and he was released. After spending six years on death row, McMillian was exonerated. The film is expected to open in early 2020.

Alabama Prisoners End Execution Lawsuit, State Will Drop Lethal Injection in Favor of Nitrogen Gas

Alabama will not execute eight death-row prisoners by means of the problematic lethal-injection protocol they have been challenging, but will instead carry out the executions using lethal gas. In a Joint Motion to Dismiss the prisoners' federal litigation over the state's execution protocol, filed on July 10, 2018, the parties agreed that the lawsuit had been rendered moot by the state's passage of legislation authorizing execution by nitrogen gas and the prisoners' election to die by nitrogen hypoxia. Alabama's lethal-injection process uses the controversial sedative midazolam, which has been implicated in numerous executions across the country that have been described as "botched." In October 2017, witnesses to Alabama's 35-minute execution of Torrey McNabb reportedly "expressed repeated concerns to each other that he was still conscious during the lethal injection." Alabama federal defender Christine Freeman, the director of the Alabama Post-Conviction Relief Project, testified on July 10 in separate litigation over Tennessee's lethal-injection process that she had witnessed McNabb grimacing and raising his arm up twenty minutes into the execution, well after the midazolam was supposed to have rendered him unconscious. Witnesses also reported that Alabama prisoner Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. After Alabama added nitrogen gas as an option for carrying out the death penalty, the prisoners had a June 30 deadline to select gas as the method of their execution. In a nitrogen hypoxia execution, the prisoner breathes pure nitrogen, which displaces oxygen in the bloodstream, suffocating them. Experts characterized the prisoners' choice as preferring the unknown risks of execution by nitrogen gas to the known risks of execution by lethal injection. Nitrogen gas has never been used as a method of execution in the United States, but has been approved as an option by three states—Alabama, Mississippi, and Oklahoma. Of the three states, only Alabama leaves the choice of execution method to the prisoner. Mississippi and Oklahoma allow nitrogen executions only if lethal injection is held unconstitutional or is "otherwise unavailable," although Oklahoma has indicated that it is developing a lethal gas protocol to replace lethal injection. According to the federal defender's office representing the Alabama prisoners, their clients in the case, "and anyone else who elected the new method, cannot now be executed by lethal injection." Alabama still must develop a nitrogen-hypoxia protocol before it can carry out any executions using that method, and the prisoners have not waived their right to challenge that protocol. Federal public defender John Palombi, who represents the prisoners, said "While the best way to reduce the risks of botched executions would be to abolish the death penalty, if the death penalty does exist, it must be carried out in a constitutional manner with the respect and dignity that is required of such a solemn event." Alabama's lethal-injection protocol is the most secretive in the nation. Palombi encouraged the state to make the nitrogen hypoxia protocol public "so that the people of the state of Alabama know what is being done in their name."

Federal Judge Orders Alabama to Disclose Execution Records

A federal district court has ordered the Alabama Department of Corrections to release its lethal-injection protocol and unseal transcripts and pleadings related to the failed execution of Doyle Hamm. In a May 30, 2018, order, Judge Karon Owen Bowdre, Chief Judge of the United States District Court for the Northern District of Alabama said "how Alabama carries out its executions" is "a matter of great public concern," and ruled that the public's "common law right of access to the sealed records relating to Alabama’s lethal injection protocol" outweighed arguments to keep the records secret. Doyle Hamm was scheduled to be executed in Alabama on February 22. Despite Hamm’s repeated warnings that his terminal illness would make it impossible to establish IV lines, and after an initial stay of execution issued by Judge Bowdre was overturned by the appellate courts, Alabama unsuccessfully tried for more than two hours to set an IV before calling off the execution. Hamm had filed suit against the state seeking to bar Alabama from making a second attempt to execute him. The parties reached a confidential settlement in which Alabama agreed it would not execute Hamm, leaving questions about Alabama's protocol and execution process unanswered. Three media outlets—the Associated Press, The Montgomery Advertiser, and the Alabama Media Group—intervened, seeking public release of the protocol and judicial records. Alabama argued that providing the records to the media would be improper because "the media attempts to gin up public scandal" about the death penalty. The court rejected that accusation as unsupported by any facts, emphasizing that "Public discussion is not the same as public scandal. The public," she wrote, "needs to know how the State administers its laws; without such knowledge, the public cannot form an educated opinion on this very important topic." The court's order allows the state to redact from the records information that could reveal the identities of the individuals who participated in the execution. State officials have not indicated whether they will appeal.

Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”

Confidential Settlement Leaves Questions About Alabama Execution Process Unanswered

One month after Alabama called off its two-and-a-half hour attempted execution of Doyle Hamm, the state reached a confidential settlement agreement in which it agreed not to seek another execution date and Hamm's attorney dismissed his client’s pending civil-rights lawsuit. In a March 27, 2018 press release, Columbia University law professor Bernard Harcourt, who has represented Hamm for 28 years, said the settlement was reached “after lengthy, fruitful discussions with the Alabama Attorney General's office.” But the settlement left unanswered numerous questions about what happened during the failed execution and about the state’s secret execution protocol. In response, Alabama’s death-row prisoners filed a motion in their on-going challenge to the state’s execution protocol seeking a federal court order to preserve all evidence from the attempted execution, and several leading media organizations have sought permission to intervene in Hamm’s case to obtain access to information that currently remains sealed. The confidential settlement came after Hamm’s attorney submitted a medical report by a doctor who examined Hamm three days after the failed execution. The report—the only public document describing the circumstances of the execution attempt—indicates that execution personnel unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. After executioners failed for more than two hours to set an intravenous execution line, Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution and held a news conference in which he repeatedly asserted the state had followed its execution protocol. “I wouldn’t characterize what we had tonight as a problem,” Dunn said. In the face of conflicting reports about the attempted execution, The Montgomery Advertiser, Alabama Media Group, and The Associated Press filed a motion to intervene in the lawsuit to gain access to sealed documents. “Open government is good goverment,” said Montgomery Advertiser Executive Editor Bro Krift. “There are few things the citizens of Alabama need to know more than how the state is executing someone.” Alabama does not disclose its execution protocol to the public nor does it allow the public to witness the part of the execution in which prison personnel attempt to insert the IV lines. The media's motion argued that, “[w]ithout access to the protocol, it is impossible for the public to understand if the failure was due to a problem inherent in protocol, or to some other cause.” Alabama continues to publicly deny that anything went wrong in its failed attempt to execute Hamm. On March 30, in response to motion to preserve evidence filed in the prisoners’ lawsuit, the Alabama Attorney General blamed the U.S. Supreme Court for the state’s failure to execute Hamm. Prosecutors wrote: “because the Supreme Court prevented Defendants [the Alabama Department of Corrections] from beginning preparations until a mere three hours before the execution warrant was set to expire, time ran out for Defendants and necessitated aborting the execution.” Also on March 30, Chief Judge Karon Owen Bowdre granted the media group's motion to intervene in Hamm’s case, but reserved judgment on whether to unseal the record. “The Press Movants claim an interest in this case because it centers on a ‘matter of intense public interest: the method by which the State of Alabama exercises the power to put people to death,’” Judge Bowdre wrote. “The court agrees.” In allowing the media organizations to intervene, the court found that neither Alabama prosecutors nor Doyle Hamm “adequately represent” the interests of “the public’s right of access to the records.”

Human Rights Advocates: Prisoner's Rare Medical Condition Risks Gruesome Botched Execution in Missouri

Human rights advocates are warning that the impending execution of Russell Bucklew (pictured) in Missouri on March 20 presents a “substantially increase[d] risk of a gruesome and botched execution.” Court pleadings and a March 14 letter from the American Civil Liberties Union to the Inter-American Commission on Human Rights (IACHR) say that Bucklew suffers from congenital cavernous hemangioma, a rare and severe blood-vessel condition that his lawyers and doctors say compromises his veins and makes lethal injection inappropriate and potentially torturous. Bucklew’s medical condition causes large tumors of malformed blood vessels to grow on his head, face, and neck, including a vascular tumor that obstructs his airway. Dr. Joel Zivot, a board-certified anesthesiologist who reviewed Bucklew’s medical records for defense lawyers in the case, said his compromised veins will likely prevent the pentobarbital Missouri uses in executions from circulating through his bloodstream as intended, risking a “prolonged and extremely painful” execution. Zivot says there is a substantial risk that Bucklew’s throat tumor may burst during the execution and that he will suffocate, choking on his own blood. Missouri first sought to execute Bucklew on May 21, 2014. At that time, his lawyers filed a challenge to the state’s lethal-injection process based on Bucklew's medical condition, and the ACLU filed a petition in the IACHR seeking precautionary measures—the international equivalent of an injunction—against the execution. The IACHR petition argued that the execution would violate international human rights proscriptions against cruel and inhumane treatment and torture. On May 19, 2014, the Missouri federal district court denied Bucklew’s execution challenge and his motion to stay his execution. A divided panel of the U.S. Court of Appeals for the Eighth Circuit granted him a stay of execution so it could consider his lethal-injection claim, but the full court, sitting en banc, vacated the stay. Bucklew then sought review in the U.S. Supreme Court, which stayed his execution pending the outcome of the lethal-injection appeal in the Eighth Circuit. While the case was working its way through the federal courts, the IACHR issued precautionary measures against the United States on May 20, 2014, requesting that the U.S. comply with its human rights obligations under the charter of the Organization of American States and the American Convention on Human Rights. The IACHR directive asked the U.S. to “abstain from executing Russell Bucklew” until the human rights body could hear his case. On March 6, 2018, the Eighth Circuit Court of Appeals rejected Bucklew’s appeal and affirmed the district court’s ruling, concluding that “Bucklew has failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.” The ACLU then requested that the IACHR “immediately intervene” to halt Bucklew’s execution, and the human rights commission informed the U.S. government that its precautionary measures were still in effect. “This execution should not move forward,” ACLU’s Human Rights Program Director Jamil Dakwar told Newsweek. “Because the state is pursuing lethal injection, that will most certainly cause severe pain and suffering which under international law is considered torture.” Bucklew’s scheduled execution comes on the heels of two failed executions of gravely ill prisoners in which states ignored warnings that the prisoners’ medical conditions had compromised their veins and would make it impossible for executioners to set intravenous execution lines. Nonetheless, Ohio tried and failed to execute Alva Campbell and Alabama called off the execution of Doyle Hamm after failing for more than 2 1/2 hours to obtain venous access in his lower extremities. Campbell subsequently died of his terminal illness and Hamm has sued to bar Alabama from attempting to execute him again. On March 15, Bucklew’s lawyers filed pleadings in the U.S. Supreme Court asking the Court to stay his execution and review his case.

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