Alabama

Alabama

Supreme Court’s Intervention to Allow Execution of Domineque Ray Provokes Widespread Condemnation

The U.S. Supreme Court has found itself in the crossfire of harsh criticism from across the political spectrum after its intervention in a death penalty case allowed Alabama to execute a Muslim prisoner without providing him access to a religious adviser. Evangelical Christians and Catholic Bishops joined editorial boards and commentators from the New York Times to the National Review in condemning the Court’s 5-4 decision permitting the execution of Domineque Ray (pictured) on February 7, 2019. Los Angeles Times deputy editorial page editor Jon Healey wrote: “If you need a rabbi, an imam or other non-Christian spiritual advisor to accompany you into the death chamber in Alabama, God help you. Because the U.S. Supreme Court won’t.” Libertarian professor Ilya Somin, of the George Mason University Antonin Scalia Law School, called the decision a “grave injustice” and the conservative National Review headlined a column by its senior writer David French, “The Supreme Court Upholds a Grave Violation of the First Amendment.”

Alabama scheduled Ray’s execution on November 6. Undisclosed to Ray and the other death-row prisoners, Alabama’s secret execution protocol mandated that a Christian chaplain—and no other religious adviser—be present in the execution chamber. Ray sought to be provided the same access to religious comfort that the state afforded Christian prisoners, and requested that his imam be allowed in the execution chamber. The state denied his request on January 23, 2019, saying that the chaplain was allowed in the chamber because he was a trained employee of the Department of Corrections, but an untrained volunteer imam would present security concerns. Five days later, Ray sought a stay of execution alleging that Alabama’s policy violated his First Amendment right to free exercise of religion. A federal appeals court granted a stay to allow briefing on the issue, but the U.S. Supreme Court, in a contentious 5-4 decision, reversed the decision. In a dissent joined by Justices Breyer, Ginsburg, and Sotomayor, Justice Elena Kagan wrote, “Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”

Christian leaders raised concerns about the decision’s disregard of human dignity and its broader impact on religious liberty. In a news release issued under the heading “U.S. Bishops’ Chairmen Condemn Decision Preventing Muslim Man from Receiving Appropriate Spiritual Care at Execution,” the chairs of the U.S. Conference of Catholic Bishops committees for Religious Liberty and for Domestic Justice and Human Development called the death penalty itself “an affront to human dignity.” The statement said “Mr. Ray bore the further indignity of being refused spiritual care in his last moments of life.” The committee chairs—Archbishop Joseph E. Kurtz of Louisville, Kentucky, and Bishop Frank J. Dewane of Venice, Florida—wrote: “This unjust treatment is disturbing to people of all faiths, whether Muslim, Christian, Jewish, or otherwise. People deserve to be accompanied in death by someone who shares their faith. It is especially important that we respect this right for religious minorities.” In an op-ed for The New York Times, Alan Cross, a pastor and missional strategist with the Montgomery Baptist Association, wrote, “I am not a Muslim. I am an evangelical Christian minister in Alabama. But my religious freedom — everyone’s religious freedom — took a hit when my state decided that instead of slowing down to accommodate religious difference, the execution, which is final and irrevocable, had to go on as scheduled.” Pastor Cross stressed the value of religious diversity, saying “The solution to diversity is not to eliminate religious difference, but rather to work together to be fully who we are, to cultivate a society where religious belief is recognized and accommodated. Mr. Ray’s religious freedom mattered as much as anyone else’s. That freedom is part of what makes America great. When it is lost, it is replaced by a sterility and silence that will ultimately drive us apart.” In its own editorial, the New York Times editorial board called the Supreme Court ruling a “moral failure” that diminished Muslims and compounded the indignity of its prior acquiescence in the travel ban imposed by the Trump administration.

Alabama Executes Muslim Prisoner Amidst Charges of Religious Discrimination

In a 5-4 decision that Justice Elena Kagan characterized as “profoundly wrong,” the U.S. Supreme Court on February 7, 2019 permitted Alabama to execute a Muslim death-row prisoner, Domineque Ray (pictured), who had claimed that the state’s execution process discriminated against him because of his religion. Without explanation, the Court asserted that Ray had waited too long to challenge a provision in Alabama’s execution protocol that made a Christian chaplain part of the state’s execution team and prohibited other religious advisors from being present in the execution chamber. Ray argued that Alabama’s practice constituted an establishment of religion that discriminated against non-Christians. During federal court hearings on the constitutionality of the policy, Alabama withdrew its requirement that the chaplain be present in the execution chamber. However, it continued to reject Ray’s request that his imam—a prison-approved spiritual advisor—be permitted in the execution chamber. The U.S. Court of Appeals for the Eleventh Circuit ruled that Ray was likely to succeed on his religious discrimination claim, scheduled briefing in his case, and stayed his execution. The Supreme Court reversed, without addressing the constitutional issue.

Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor dissented. Quoting prior Supreme Court decisions, Kagan wrote, “‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.” In asserting that its execution process complied with constitutional guarantees of religious freedom, the Alabama Attorney General’s office told the federal courts: “Like any other inmate, Ray has been and will be given opportunities to speak with his spiritual adviser, including up to the moment that he is taken into the chamber.” However, Spencer Hahn, one of Ray’s lawyers, said the prison had failed to honor that promise and that Ray lost access to his imam three hours before the execution.

Ray was convicted and sentenced to death for the rape and murder of a 15-year-old girl. No physical evidence linked him to the crimes and a sole prosecution witness, Marcus Owden, implicated Ray. In 2017, Ray’s appeal lawyers discovered for the first time that Owden—who avoided the death penalty by testifying against Ray—had schizophrenia and was suffering from delusions and auditory hallucinations when he accused Ray of the rape and murder and testified against him. Ray’s lawyers argued that the prosecution’s deliberate suppression of this evidence, despite being aware of Owden’s mental illness, violated Ray’s due process rights and entitled him to a new trial. Without comment, the Supreme Court declined to review the claim and denied a stay. Ray was the second person executed in the U.S. in 2019 and the first in Alabama.

Alabama’s Use of Nitrogen Asphyxiation Still in Limbo

In March 2018, Alabama enacted a new law authorizing the use of nitrogen gas as an alternative method of execution. Although lethal injection remained the primary method of execution, the law provided condemned prisoners a limited opportunity to designate nitrogen asphyxiation (hypoxia) as the means of their death. The availability of execution by nitrogen gas led to a July 2018 settlement of a federal lawsuit Alabama’s death-row prisoners had filed that had challenged the constitutionality of the state’s three-drug lethal injection protocol as constituting cruel and unusual punishment. But nine months after the law was enacted and five months after the prisoners opted for execution by lethal gas, Alabama has not yet issued a protocol explaining how it intends to conduct nitrogen-gas executions, and there are no clear indications as to when the state will do so.

No state has carried out an execution through nitrogen hypoxia, although three states – Alabama, Mississippi, and Oklahoma – now authorize its use if lethal injection is held unconstitutional or determined to be unavailable. Alabama also permits its use if the prisoner selects lethal gas over lethal injection. Other forms of lethal gas, all involving a gas chamber, have been used in 11 of the 1,490 executions carried out in the United States since executions resumed in 1977. However, none of the states authorizing the use of nitrogen gas has issued a nitrogen-gas execution protocol nor have the states indicated whether they plan to construct a vacuum chamber or use some form of a death mask to administer the gas.

The Alabama legislature turned to nitrogen gas as an alternative to lethal injection in response to difficulty obtaining appropriate drugs for lethal injection and a series of botched or visibly problematic lethal-injection executions using the drug midazolam. In February 2018, the execution of Doyle Lee Hamm was called off after an Alabama execution team failed for two-and-a-half hours to find a suitable vein in which to place an intravenous execution line. In October 2017, witnesses to the 35-minute execution of Torrey McNabb reportedly “expressed repeated concerns to each other that he was still conscious during the lethal injection.” Witnesses also reported that 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. In November and December 2018, two Tennessee death-row prisoners elected to be executed in the electric chair after a medical expert reported that Billy Ray Irick had not been properly anesthetized and experienced the torturous effects of the second and third lethal-injection drugs while still conscious during a prolonged midazolam execution

After a gas protocol is promulgated, it will still be subject to court challenges based upon the particular method chosen. The Alabama Department of Corrections has said it is “continuing to develop the protocol” in conjunction with the Alabama Attorney General's Office.

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.

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