On February 7, faith leaders delivered a letter to Gov. Kay Ivey asking her to reconsider a decision she made last November to have the state Department of Corrections investigate its own failures in a series of last year’s executions.
Some 170 priests, ministers, rabbis, and other clerics from across the state urged her to change course and create an independent commission to study and address Alabama’s death penalty problems.
As if to prove that this letter’s suggestion was badly needed, one day before the faith leaders made their appeal, the state filed a motion to dismiss a lawsuit by Kenneth Smith, whose execution was stopped last November after state officials tried for more than an hour to insert an IV.
Shockingly, Alabama now wants to try executing Smith a second time.
Neither its in-house investigation nor its response to Smith’s suit suggests that Alabama is ready to get its death penalty house in order. If it were serious about doing so, it would need to start a new, independent investigation and give up its heartless effort to return Smith to the execution chamber.
In the wake of Smith’s botched execution, as The Washington Post reported, Gov. Ivey asked Alabama’s Attorney General Steve Marshall “to withdraw requests to set execution dates … [in] the only two such cases pending before the state’s supreme court, and to refrain from seeking further executions for other inmates on death row.”
She also ordered Alabama’s Department of Corrections (ADOC) to carry out what she called a “top to bottom” review of the state’s execution process and devise a plan that would enable the state to carry out executions successfully.
And Ivey made clear where her sympathies lay.
“For the sake of the victims and their families,” she said “we’ve got to get this right. I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here.”
She promised “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. 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.”
John Hamm, Director of the ADOC, followed up Ivey’s announcement by claiming that “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. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.”
Despite Hamm’s reassuring words, the deck has been stacked from the start by Ivey’s one-sided mandate and the ADOC’s insider investigation.
As Robert Dunham, former Executive Director of the Death Penalty Information Center, said at the time the investigation was announced, “The Alabama Department of Corrections has a history of denying and bending the truth about its execution failures, and it cannot be trusted to meaningfully investigate its own incompetence and wrongdoing.”
Dunham also noted that “Governor Ivey’s willful blindness to ADOC’s responsibility for its failures only makes the problem worse. Legal efforts aimed at ensuring that ADOC executioners do not torture prisoners to death are not — and have never been — the cause of ADOC’s serial failures to timely establish execution IV lines. Nor are they the cause of ADOC’s evasiveness, lack of transparency, and repeated false statements to the media and the public.”
Dunham called on Ivey to end the charade and launch a new, independent investigation.
But for death penalty supporters like Gov. Ivey, independent commissions are dangerous things. They might tell the truth about the death penalty’s unreliability, costliness, arbitrariness, discrimination, and brutality. Once that truth is documented by an independent group, it is hard to put the genie back in the bottle.
Because independent investigations in states like Illinois, Maryland, and New Jersey helped pave the way for those states to abolish capital punishment, it is not surprising that Ivey ignored Dunham’s plea.
Which brings us back to last week’s effort by Alabama faith leaders to get her to change her mind.
Reiterating Dunham’s concerns, their letter said, “The fact of the matter is that an agency that has failed repeatedly to get its own house in order cannot be trusted to privately conduct an investigation into problems it is causing.”
They added that the review should be open and not “shrouded in secrecy.” And it should go beyond the problem of botched executions and undertake a truly “comprehensive” examination of the way Alabama’s death penalty operates.
Just as they were making their plea, Attorney General Marshall went to court seeking another chance to execute Kenneth Smith.
Smith had filed suit in the United States District Court for the Middle District of Alabama hoping to prevent the state from proceeding with a second attempt at execution.
His complaint alleged that during the execution he had been “subjected to ever-escalating levels of pain and torture… [and that] Defendants’ treatment of Mr. Smith does not fall within society’s standards for a constitutional execution. The botched execution was terrifying and extremely painful for Mr. Smith.”
“To subject Mr. Smith to a second execution by lethal injection,” the complaint continued, “would subject him to a torturous experience of unnecessary physical and psychological pain, as has been established through Alabama’s last three execution attempts. Therefore, any further attempts to execute Mr. Smith would violate the Eighth Amendment.”
The state responded to Smith’s suit by arguing that “An ‘attempted’ execution plainly is not a constitutional violation.” They characterized what happened to him as simply an “error.”
While conceding that the error was “regrettable,” Alabama argued that it “‘does not suggest cruelty’ as required to establish an Eighth Amendment violation.” In the end, the state callously described what Smith experienced as nothing more than “being ‘repeatedly prick[ed] . . . with a needle.’”
Last week’s developments suggest that Alabama’s governor and attorney general have not learned very much from the state’s recent string of execution failures. Still, the faith leaders who wrote to Gov. Ivey hoped to appeal to her better angels.
“Now is the time,” they said, “to ensure that the values we share are not cast aside and that ethical treatment of ‘the least of these’ includes all of human creation, even the men and women on Alabama’s Death Row.”
Sadly, their eloquent appeal seems likely to fall on deaf ears in a state that is not yet ready to clean up its death penalty mess.
Source: verdict.justia.com, Austin Sarat, February 13, 2023. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde