The Alabama Supreme Court announced on January 12, 2023 an amendment to its Appellate Procedure Rules that eliminated automatic simple error checking for procedural errors in death penalty cases. This new rule removes important protections for capital punishment rights that have been in effect since Alabama reinstated the death penalty in 1976. Without the review, death row criminals wrongly convicted or convicted could spend many more years on death row before the error is discovered.
On the same day, the court also announced that in response to the state’s string of failed executions in 2022, the governor will now be able to set the window of opportunity in which an execution can take place. Rather than addressing why prison officials were unable to place an IV line within the previously allowed time window, the change merely increases the time available to conduct the execution.
“I think the combination of these two rules increases the likelihood that we will see more wrongful convictions, more unjust sentences, and more cruelty and potential torture,” said Bryan Stevenson, founder and executive director of the Equal Justice Initiative. He found that nearly 40% of reversals in Alabama’s death penalty cases occurred under the court’s simple error check, which was automatic in all death penalty cases.
Under the previous rule, upon direct review, the Alabama Court of Criminal Appeals would read the logs of all cases that resulted in death sentences to determine whether there were errors that “[had] or probably [had] affected an essential right of the complainant”, irrespective of whether the defendant’s lawyer had complained about the error. Under the new rule, the court is no longer required to examine transcripts of all capital cases for simple errors.
In contrast, Judge Greg Shaw, who previously served on the Alabama Court of Criminal Appeals and conducted such simple error checks, wrote that he saw “no compelling reason” to change the rule, saying the court was “well placed” to do so conduct such a review, and that “if there is a reversible error in a case where the death penalty has been imposed, it should be uncovered and rectified previously rather than later.” [emphasis original] He noted that because both state and federal post-trial trials can occur many years after the trial, the passage of time could cause prosecutors to have difficulty retrying a case if an error is discovered at the time. He also emphasized that in post-conviction proceedings, some claims are statute-barred if not brought in court or through direct appeal.
In a separate dissent, Judge Kelli Wise, who also previously served on the Alabama Court of Criminal Appeals, wrote, “I understand that simple error checking on direct appeal places a burden on the Court of Criminal Appeals and requires the use of judicial resources. In these cases, however, the lives of the accused are at stake and I believe such cases merit enhanced scrutiny upon direct appeal.”
In a statement supporting the new rule, Judge James Mitchell wrote that in cases where a defendant was wrongly convicted and his attorneys did not contest or uphold the error, the court did not discover it on direct appeal because it did not administer error checking the defendant has a “powerful tool” to correct this error: a post-conviction motion.
However, according to the Alabama Post-Conviction Relief Project, Alabama does not automatically provide counsel for state litigation after conviction. After a defendant files a post-conviction petition in state court, he or she may be appointed counsel, but only if it “appears that counsel is necessary in the judge’s opinion.” As a result, many Capital Defendants have no legal assistance in preparing or hearing their post-conviction motions. Additionally, post-conviction state appeals can take many years to resolve, and wrongly convicted defendants can spend years on death row awaiting post-conviction appeals without the help of an attorney. After exhausting state remedies, a defendant may be able to file a federal habeas motion, but due to federal procedural rules, claims not made in state procedures often lapse in the federal system, so even an obvious error from the process could be defaulted, because it has not been triggered up to this point.
Alabama has some of the least stringent procedural safeguards for capital defendants. It is the only state that allows judges to hand down the death penalty to a defendant based on non-unanimous jury verdicts, a practice that has been correlated with a higher rate of wrongful convictions. Judges in Alabama are elected and in election years hand down a death sentence rather than a non-unanimous jury verdict. After the trial, a defendant is last guaranteed legal counsel in a state trial during his or her direct appeal, where there are no guarantees of simple error checking. The Equal Justice Initiative reported that the rule was changed without input from the Alabama Appellate Rules Committee, which normally investigates and reports on the potential impact of proposed rule changes.
As part of changing the state’s execution procedure, the governor will now determine the window of time in which an execution can take place. This change comes in response to last year’s two botched execution attempts, in which execution teams failed to set up IV lines to administer lethal injectable drugs within the six-hour window previously provided by Alabama’s death sentences . There are no limitations on the governor’s discretionary powers as a rule. Gov. Kay Ivey specifically requested that the court extend the timeframe for executions after the two botched executions, but Stevenson said that while some states give longer than one day, no state gives the governor that wide discretion and that he will allow problem executions keep going longer.
Read the Alabama Supreme Court’s new simple error-checking rule here.
Read the Alabama Supreme Court’s new rule on execution deadlines here.
Kim Chandler, Alabama Extends Time for Executions, Ends Automated Review, AP news jan 18, 2023; Evan Mealins, Alabama Supreme Court Limits Review of Errors in Death Row Cases; Affected Stakeholders, Montgomery Advertiser, Jan. 19, 2023; Alabama Supreme Court removes critical false sentencing safeguards in death penalty cases, Equal Justice Initiative, Jan. 17, 2023; Ivana Hrynkiv, Alabama Appellate courts do not have to recognize ‘Simple Mistakes in Death Row Cases, New Rule Says AL news jan 18, 2023; above APCRPAlabama Post-Conviction Relief Project (last visited Jan. 24, 2023); Alabama Supreme Court Removes Critical Protections Against Wrongful Sentencing in Death Penalty Cases, Equal Justice Initiative, January 17, 2023.