MONTGOMERY — Alabama’s moratorium on executions appear to support data indicating lethal injection as the most botched form of capital punishment.
Gov. Kay Ivey issued a moratorium Nov. 21, on executions in Alabama after complications during three lethal injections this year alone, two of which were subsequently halted.
Kenneth Eugene Smith was set to be executed Nov. 17, but after Department of Corrections staff spent an hour trying to set IV lines for the lethal injection drugs, his execution was halted. Similar problems arose in the planned Sept. 22, execution of Alan Eugene Miller that was also unsuccessful. Joe Nathan James Jr.’s execution on July 28 lasted more than three hours before he died.
“In a mere six months, we’ve witnessed three botched executions in Alabama, two of which were called off and one that should not have proceeded,” said Alison Mollman, senior counsel at the ACLU of Alabama. “Each of these men were strapped to a gurney for hours, poked and prodded, and had no access to their own attorneys or information about their own execution.”
In February 2018, Doyle Lee Hamm had an unsuccessful lethal injection after Department of Corrections execution staff couldn’t find a vein. He later died in 2021 of cancer.
Ivey has asked Attorney General Steve Marshall to withdraw the state’s two pending motions to set execution dates in the cases of Miller and James Edward Barber, the only two death row inmates with such motions currently pending before the Alabama Supreme Court, according to a release from the state. She also asked the DOC to perform a “top-to-bottom review” of the state’s execution process to ensure successful executions in the future.
“I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment,” Ivey said. “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.”
DOC Commissioner John Hamm said the department is committed to the effort.
“Everything 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,” Hamm said.
Lethal injection is the primary form of execution in most states, including Alabama. In 2018, Alabama lawmakers authorized nitrogen hypoxia (gas) executions and is one of only three states to legalize that method. However, it is yet to be used in Alabama.
Among all methods of execution, lethal injection appears to have the highest failure or botched rate.
Botched executions are “those involving unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner,” according to Austin Sarat, a professor of jurisprudence and political science at Amherst College.
In his 2014 book, “Gruesome Spectacles: Botched Executions and America’s Death Penalty,” Sarat’s research reveals that 3.15% of 8,776 executions in the U.S., between 1890 to 2010, were botched.
More than 7% of executions by lethal injection were botched, while 5.14% of lethal gas executions were botched. Execution by hanging saw a 3.12% botched rate and electrocutions had a 1.92% botched rate. Executions by firing squad appear to be the most successful, with no issues reported, according to Sarat.
University of Colorado professor Michael Radalet’s analysis of 51 more well-known botched executions since 1972, 39 were by lethal injection.
“What makes lethal injection so much more likely to result in botches is the inability to set IV lines, and that is a product that is inherent with lethal injection because it is unethical for medical personnel to be involved,” said Robert Dunham, executive director of the Death Penalty Information Center. “So, unless you have a doctor or other medical personnel who are willing to violate their Hippocratic Oath — (and) that oath is to do no harm — you won’t have medically trained people setting the IV lines.”
DOC are often secret on the background or training of person performing the executions. The source of lethal injection drugs has also been secret at most agencies that perform executions. When large pharmaceutical companies began pulling out of supplying the drugs used for lethal injections more than a decade ago, more states began looking to foreign countries and local compounding pharmacies.
Dunham expects the issue of botched lethal injection procedures to become worse for various reasons, particularly as the death row population ages.
”It will get worse as prisoners being executed get older because veins become compromised. ... It will be worse with prisoners who have a life history of trauma because stress affects the body and cumulative stress affects the body — and the stress of being on death row facing execution affects the body more so than if somebody has a long prison term,” Dunham said. “You’ve got people who are the least competent in setting IV lines attempting to set IV lines among a population that’s the most difficult to access their veins.”
Texas has led the country in number of botched executions, and Georgia falls closely behind.
Alabama has the highest per death sentencing rate in the country and has the fourth largest number of inmates (170) awaiting execution of the more than 2,400 people currently on death row nationally.
ACLU of Alabama and many against the death penalty argue that the punishment is costly, discriminatory, arbitrarily used and violates the Constitutional ban against cruel and unusual punishment. ACLU representatives say while a thorough investigation of the execution process is a commendable first step, they hope it bring conversations on the need for criminal justice reform and abolishment of the death penalty.
“(Legislators) should retroactively apply the state’s 2017 ban on judicial override, a practice that allowed judges to impose death sentences despite a jury’s recommendation otherwise,” said Robyn Hyden, executive director of Alabama Arise, a public policy advocacy group.
“Lawmakers also should require unanimous agreement from jurors to sentence someone to death. and they should provide state funding for appeals of death sentences, as other states with capital punishment do.”