Alabama’s new execution rule gives state ‘unprecedented power,’ EJI says

The Equal Justice Initiative is speaking out after last week’s decision by the Alabama Supreme Court that changed the way the state sets execution dates and allows for death warrants to be valid for more than a single day, calling the rule change unprecedented.

The decision was approved Thursday by the state’s highest court, allowing for an execution warrant to be issued for a “time frame set by the governor.” Prior to this rule change, the Alabama Supreme Court issued warrants for executions that were limited to a 24-hour-period on a date set by the court.

A press release from the EJI stated that the court “abdicated its authority over the scheduling of executions and granted the governor broad new, unrestricted discretion over when executions are carried out in the state.”

“Alabama has become the only state in the country that allows executions without an established time frame, giving state executioners unprecedented power,” the statement read. “No other jurisdiction in the country allows for executions to be scheduled during a ‘time frame’ without a specified range of time that has been clearly established and reviewed.”

Several other states, including California and Georgia, allow for a multi-day execution process. California allows for a period of 10 days for an execution to happen; Georgia allows for a seven-day period.

According to the EJI, a nonprofit group that provides legal services, the court made the change without any input from its own rules committee. “Questions about whether the Alabama Supreme Court has usurped the role of the state legislature, which expressly delegated to the court the authority to schedule execution dates, are certain to emerge,” the group said.

“While the legislature has granted the Governor pardon authority and the responsibility for running the Department of Corrections, the legislature has never granted the Governor the power to schedule execution dates.”

Alabama was set to execute four inmates in 2022, but only two men died after the 24-hour deadline expired for the other two. Those men, Alan Eugene Miller and Kenneth Smith, underwent what they described in court records as hours of prison workers attempting to start an intravenous line for their lethal injections. After neither of the mens’ IV lines could be established before midnight, both executions were called off on their respective dates.

Days after Smith’s execution was called off, Gov. Kay Ivey ordered a halt to all executions in Alabama and said the Alabama Attorney General’s Office wouldn’t be seeking new execution dates from the state supreme court while a “top-to-bottom” internal review of the process was ongoing.

The EJI’s statement included a quote from Fordham Law Professor Deborah Denno, who has studied hundreds of executions by lethal injection. She found, according to EJI, that executions “should take seven-to-ten minutes from the beginning of the IV insertion process until the moment the prisoner is declared dead.”

Miller claimed workers spent 90 minutes trying to start an IV on him; Smith said the process took four hours.

Joe Nathan James Jr., who was executed on July 28, was set to die at 6 p.m. His execution didn’t begin until 9 p.m., and his official time of death was 9:27 p.m.

The statement from EJI said the new rule means “the State would have been able to prolong the botched execution process indefinitely” in situations like Miller’s or Smith’s. “The practical effect of allowing an execution to be carried out during an undefined ‘time frame’ instead of a specific date is that the state could continuously attempt to execute condemned prisoners like Kenneth Smith for hours or days.”