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Alabama Governor Kay Ivey has drawn criticism for denying clemency and presiding over the execution of Michael Samra (pictured) on May 16, 2019, one day after issuing a statement calling Alabama a pro-life state and declaring life “precious” and “sacred.” On May 15, Ivey signed into law a bill that criminalizes abortion, saying that the new law “stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” After Samra’s execution the following evening, her office issued a statement that “Alabama will not stand for the loss of life in our state, and with this heinous crime, we must respond with punishment. ... This evening justice has been delivered to the loved ones of these victims, and it signals that Alabama does not tolerate murderous acts of any nature.”
Ivey’s actions prompted rebukes from liberal and conservative quarters and renewed the question of whether one who supports capital punishment can be considered “pro-life.” “It’s a contradiction that I always observed,” said Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty. Supporting the death penalty, Ms. Cox told The New York Times, is “a stance that cheapens the pro-life argument.” Krisanne Vaillancourt Murphy, executive director of the Catholic Mobilizing Network, an anti-death penalty advocacy group, said “[p]ro-life values are meaningless when they are inconsistent.” She said that “[t]he sanctity of human life applies to each and every person, innocent and guilty,” and that a person’s dignity “is not lost even after the commission of very serious crimes.”
Ivey’s actions also were criticized in articles in The Los Angeles Times and CNN. Los Angeles Times opinion writer Scott Martelle highlighted some of the seven executions Ivey has overseen, including Walter Moody, the oldest person executed in the U.S., and Domineque Ray, a Muslim prisoner who was denied the presence of his imam during his execution. “Apparently, Ivey’s not averse to returning some of God’s sacred gifts,” Martelle wrote. “If Ivey had the courage of her convictions, she would use her authority as governor to grant clemency to [the] 181 people facing execution in Alabama. That act would … remove the cloud of hypocrisy hovering over Montgomery.” In a CNN commentary, Jay Parisi wrote: “The anti-abortion movement raises a question about capital punishment that must be answered. If the 25 white men who voted in the Alabama senate for a near-total ban on abortion were really serious about the ‘right to life,’ would they not have simultaneously banned capital punishment? The death penalty is a clear violation of this right ….” Parisi called it “deeply ironic that the seven states that have passed tighter abortion laws are also actively open to killing live human beings by lethal injection or electrocution.”
The week before Samra’s execution, Cox authored a commentary for Newsmax in which she critiqued the “inconsistency” and “hypocrisy” of arguments by people who identify themselves as pro-life, yet support capital punishment. “[A]s a Christian,” she wrote, “I believe that all life has inherent value that cannot be won or lost by anything we do, but rather that is based on all being created in the image of God.” She addressed the oft-repeated reasoning that only innocent life deserves to be protected, explaining, “there are countless innocent people caught up in the criminal justice system, and certainly on death rows. To date, one person has been exonerated from death row for every ten executions. You cannot buttress your belief in capital punishment with the reasoning that you only think innocent life should be protected." Cox said, “The vast majority of people who commit harm were first victimized numerous times — often as children — before they became violent. ... You cannot say you care about the lives of young children and want to protect them from harm, and then believe they should be executed when they are harmed and end up perpetuating the cycle of violence.”
Cox told The New York Times that the pro-life dialogue about the death penalty continues to shift, notwithstanding the events in Alabama. Growing conservative opposition to capital punishment, she said, is evidenced by the introduction of Republican-sponsored bills to repeal the death penalty in 11 state legislatures in 2019.
In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.
In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.
In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”
Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.
In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”
Tennessee executed Sedley Alley in 2006 for the brutal rape and murder of Marine Lance Corporal Suzanne Collins, after having denied him DNA testing that his lawyers believed could have established his innocence. Now, after new evidence suggests that another man may have committed the murder, the Innocence Project has filed a petition in Shelby County (Memphis) Criminal Court on behalf of Alley’s estate renewing Alley’s request for DNA testing. Local counsel also sent a letter to Governor Bill Lee asking him to exercise his clemency power to order DNA testing and, if the evidence exonerates Alley, to issue a posthumous pardon.
Innocence Project co-founder and special counsel Barry Scheck announced the filings at a May 1, 2019, news conference in Memphis. “There has never been a full and fair hearing on Mr. Alley’s guilt or innocence,” Scheck said. “This case has all the tell-tale signs of a wrongful conviction – a confession that has been demonstrated to be false by objective forensic evidence, mistaken eyewitness identification, and, most disturbing, the refusal to test DNA evidence that could have exonerated Mr. Alley or removed the doubts about his guilt.” Alley was convicted and sentenced to death after the lawyers appointed to represent him at trial failed to investigate glaring inconsistencies between the physical evidence and a confession Alley consistently said had been coerced. Instead, with no prior history of mental illness, his lawyers argued that he suffered from a multiple-personality disorder and was not guilty by reason of insanity. In 2003, after Alley had lost his appeals, new lawyers, including assistant federal defender Kelly Henry (pictured, at the news conference), were appointed to represent Alley in clemency proceedings. “When I started looking at the evidence, I immediately realized that this was a case of innocence, and that nobody — nobody — had realized it,” Henry said.
Alley’s clemency lawyers found numerous inconsistencies in the state’s evidence, unearthed evidence that pointed to another suspect who fit the eyewitness descriptions of the murderer and had a car that matched descriptions of the murderer’s car, and discovered that Alley had been at home under police surveillance at the time Collins was raped and killed. Based on these discoveries, they asked for DNA testing of clothing and the murder weapon. The evidence persuaded the Tennessee Board of Parole to recommend that then-Governor Phil Bredesen stay Mr. Alley’s execution and order DNA testing. Instead, Bredesen directed the lawyers to present their request for testing to the Tennessee courts, which refused to allow the testing to occur. Five years later, the Tennessee Supreme Court disavowed its decision in Alley’s case, saying they had misapplied Tennessee’s post-conviction DNA testing act. “The courts got it wrong in 2006 when they allowed Mr. Alley to be executed before testing the DNA,” Scheck said. “If Mr. Alley were alive today, he would be entitled to DNA testing under the … statute. We now have a chance to learn the truth in this case.”
Scheck was joined at the conference by Alley’s daughter April, who is executor of her father’s estate; members of the DNA litigation team; and death-row exonerees Ray Krone and Sabrina Butler-Smith, who both now live in Tennessee. The Innocence Project renewed efforts to obtain DNA testing last year, after receiving a tip from law enforcement that a suspected serial killer arrested in an unrelated murder in Missouri attended classes with Lance Corporal Collins near the time of the murder. Speaking at the press conference, Vanessa Potkin, the Innocence Project’s Director of Post-Conviction Litigation said, “It's never too late to find the truth. ... We have an opportunity to get to the truth today, and that's what we're asking for.”
A second Muslim death-row prisoner has filed a federal civil rights lawsuit challenging Alabama’s policy of allowing only a Protestant Christian chaplain in the execution chamber. Charles Burton, Jr. (pictured), converted to Islam 47 years ago. In a complaint filed in the United States District Court for the Middle District of Alabama, Burton, who was sentenced to death in 1992, argues that Alabama’s policy violates the Establishment and Free Exercise Clauses of the First Amendment and the religious freedom amendment of the Alabama state constitution by denying non-Christian prisoners access to religious advisors during executions in circumstances in which spiritual assistance is made available to Protestant Christian prisoners. The Stanford Religious Liberty Clinic and the Alabama federal defenders office are representing Burton in his lawsuit. “In practice, inmates who share the chaplain’s faith may hold his hand and pray with him in their final moments, but that same comfort and prayer is denied to those of other denominations or faiths,” the clinic wrote in a press release announcing the suit. “This violates basic principles of religious equality and human dignity,” the clinic said.
Burton’s challenge was filed after a 5-4 majority of the U.S. Supreme Court lifted a federal appeals court’s stay of execution and allowed Alabama to execute Domineque Ray, another Muslim prisoner who had argued that the state’s refusal to accommodate his request to permit an imam in the execution chamber was religiously discriminatory. Overturning the fact-finding of a federal appeals court, the Court asserted that Ray had filed his claim too late and therefore was not entitled to a stay of execution. The decision in Ray’s case drew significant criticism, and less than two months later, the Court halted the execution of Texas prisoner Patrick Murphy, who raised a strikingly similar claim. Murphy, a Buddhist, challenged Texas’ policy of allowing only Christian or Muslim chaplains, both employed by the Department of Criminal Justice, to be present during executions. Texas responded to the ruling by barring all religious advisors from the execution chamber. To avoid any possibility that Alabama could say he did not timely raise his challenge, Burton filed suit before the state has set an execution date for him.
Burton’s filing emphasizes the importance of religious freedom. Alabama’s actions, the suit alleges, “violate two of the most elementary principles of our constitutional democracy, principles that the law requires to be honored even in prison: to be able to practice one’s religion free from substantial and unjustified governmental burdens and to be free from governmental discrimination based on one’s religion.” In an editorial on April 11, 2019, the Wall Street Journal supported Burton’s claim. “The death penalty ranks among America’s most divisive issues,” the editorial board wrote. “But on one point we suspect advocates and detractors agree: the right of a condemned man to have a minister of his own faith inside the execution chamber at the hour of his death.”
In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.
In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.
Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”
In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”
In a victory for the media and advocates of open government, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must disclose key portions of its highly secretive lethal-injection execution protocol to the public. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the protocol, which came under intense scrutiny in the wake of Alabama’s failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.
Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He argued that his veins had been compromised by his illness and executing him by lethal injection would constitute cruel and unusual punishment. The courts permitted the execution to proceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, executioners tried and failed for two-and-one-half hours to set an intravenous execution line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution but told the media, “I wouldn’t characterize what we had tonight as a problem.” Dunn repeatedly asserted the state had followed its execution protocol and claimed the execution had been halted only because the late court rulings in the case did not leave corrections personnel sufficient time to execute Hamm before his death warrant would have expired. Hamm filed a federal civil-rights lawsuit seeking to prevent Alabama from attempting to execute him a second time. As part of that suit, he filed a doctor’s report—the only public document describing the circumstances of the execution attempt—that indicated execution personnel had 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. Shortly thereafter, Hamm and the state reached a confidential settlement in which Alabama agreed not to seek another execution date, the court records of the case would be sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not disclose any additional information about the case. In the aftermath, the three media outlets filed a motion to gain access to the protocol and execution records. A federal district court ruled in their favor in May 2018.
Alabama appealed that ruling, arguing that the lethal-injection protocol had never been formally filed with a lower court, and therefore was not a court record subject to public access. The appeals court rejected that argument, with Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have been formally filed under the rushed timeline of Hamm’s approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court’s resolution of the substantive motions in Hamm’s as-applied challenge to the protocol.” The decision also addressed the importance of transparency to the public, saying “Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”
Alabama’s execution secrecy has been at the core of several other execution controversies. In December 2016, execution witnesses reported that Ronald Smith clenched his fists and gasped repeatedly for nearly fifteen minutes. After the execution, Dunn told the public only that the state had “followed [its] protocol.” State officials later refused to provide any documentation about the execution. In February 2019, late disclosure of its secret protocol provision mandating that a Christian chaplain—and no other religious adviser—be present in the execution chamber led to the controversial execution of Muslim prisoner Domineque Ray without affording him access to an imam at the time of his execution.
Texas executed Robert Jennings (pictured) on January 30, 2019 for the 1988 murder of Houston police officer Elston Howard, amid questions as to his eligibility for capital punishment and the constitutionality of his death sentence. Jennings was convicted under a sentencing procedure that the U.S. Supreme Court had struck down shortly before his trial in 1989 because it did not adequately allow jurors to consider evidence supporting a sentence less than death. The jury instructions given in his case to redress that error were also later declared unconstitutional, and 25 Texas death-row prisoners had their death sentences overturned as a result. However, Jennings’s court-appointed trial and appeal lawyers failed to raise the issue in Texas state court and the Texas federal courts refused to consider the issue on the grounds that the state court lawyers had procedurally defaulted the claim. The U.S. Supreme Court later changed federal habeas corpus procedures to permit review if ineffective state-court representation caused the default. But when Jennings’s federal lawyers attempted to raise the issue again, the Texas federal appeals court ruled on January 28 that its prior decision had not been based on procedural default and that it had already rejected the claim. Without comment, the Supreme Court issued an order on January 30 declining to hear Jennings’s case, and he was executed.
In challenging Jennings’s death sentence, his current lawyers also argued that both Jennings’s trial lawyer and his previous appellate attorney provided inadequate representation. Jennings’s trial attorney was defending two death-penalty cases at the same time and did not investigate significant mitigating evidence that included Jennings’s history of brain damage from a car crash and an injury with a baseball bat, an IQ of 65, and intellectual and adaptive deficits associated with his low IQ. Trial counsel also failed to present readily available evidence of Jennings’s impoverished, abusive, and neglectful upbringing: he was born as the result of a rape, and his mother frequently told him she did not want him. His original appeal lawyers also failed to raise these issues. Edward Mallett, one of Jennings’s current lawyers, said, “There has not been an adequate presentation of his circumstances including mental illness and mental limitations.”
U.S. District Judge Lynn Hughes took the unusual step earlier in January of asking the state to consider supporting clemency for Jennings, citing the 30-year delay between the crime and the scheduled execution. Jennings's attorneys argued in his clemency petition that the state had granted clemency last year to a white death-row prisoner with fewer mitigating circumstances. "Denying a commutation truly will demonstrate that race, class, and privilege matter in determining who is executed in Texas," attorney Randy Schaffer wrote. "This would send a terrible message to the world."