The Alabama Supreme Court is opening a window to carrying out death sentences after a series of problematic executions

After three difficult executions by lethal injection in Alabama, the state Supreme Court ruled in favor of a motion by Gov. Kay Ivey, R, requesting that the prison system have more time to carry out death sentences. It also eliminated automatic checking for process errors in death penalty cases.

The Alabama Supreme Court announced the changes to the appeals process last Friday. The 6-3 ruling overturned the previous requirement that all executions be completed within one day, with the death sentence expiring at midnight, and gave the governor the power to set the execution window.

The divided court also eliminated an automatic “simple error check,” whereby the Alabama Court of Criminal Appeals automatically reviewed death penalty cases for a clear error in the process, even if the defense attorney did not object.

The judges said the appeals court judges could conduct the review but were no longer required to do so.

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Governor Kay Ivey is sworn in as the 54th Governor of Alabama during a ceremony on the steps of the Alabama state capital Monday, January 16, 2023, in Montgomery, Alabama.

Governor Kay Ivey is sworn in as the 54th Governor of Alabama during a ceremony on the steps of the Alabama state capital Monday, January 16, 2023, in Montgomery, Alabama.
(AP Photo/Butch Dill)

The governor’s office described the time window change as a “win for justice,” with proponents adding that the appeal change would relieve the court system.

“I consider this a victory for justice. As we interpret the order first, it secures an extended timeframe, which was a key request from the governor,” Ivey spokeswoman Gina Maiola said in an email. She said the governor’s staff would review the order with the prison system.

On the other hand, Equal Justice Initiative founder Bryan Stevenson, a prominent death penalty advocate, spoke out against the changes, saying the lifting of a crucial review procedure was “shocking”.

“I think the combination of those two rules increases the likelihood that we’re going to see more false convictions, more unfair sentences, and more atrocities and potential torture,” Stevenson told the Associated Press.

Stevenson said nearly 40% of reversals in Alabama’s death penalty cases have occurred under the Plain Error Review, which has been in effect since the state reinstated the death penalty in 1976.

Commenting on the time frame change, Stevenson said while other states allow longer periods for an execution to be conducted, no state gives a governor complete power in the process. He fears that the change could make “already problematic executions” last even longer.

Bryan Stevenson, Esq., Founder and Executive Director of the Equal Justice Initiative, speaks onstage during the 2023 Martin Luther King, Jr. Beloved Community Commemorative Service at the Ebenezer Baptist Church January 16, 2023 in Atlanta.

Bryan Stevenson, Esq., Founder and Executive Director of the Equal Justice Initiative, speaks onstage during the 2023 Martin Luther King, Jr. Beloved Community Commemorative Service at the Ebenezer Baptist Church January 16, 2023 in Atlanta.
(Paras Griffin/Getty Images)

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Judge Jay Mitchell wrote on Jan. 12 in a unanimous opinion that simple error checking was “unnecessary” and “contrary to common law, federal law and the laws of our sister regional states.”

He said the change will relieve the court as it will no longer “need to search the records for such errors, nor will it be forced to analyze error claims”. Mitchell said attorneys for death row inmates could raise the issues in other appeals.

“Today’s change restores the proper role and scope to reviewing simple errors in capital punishment cases. In doing so, it brings our appeals procedure rules into closer alignment with the common law approach and the approach of other jurisdictions,” Mitchell wrote. “The change also streamlines the appeals process, thereby promoting the fair and efficient administration of justice.”

Supreme Court of Alabama in Montgomery, Alabama on July 6, 2018.

Supreme Court of Alabama in Montgomery, Alabama on July 6, 2018.
(Raymond Boyd/Getty Images)

Judge Kelli Wise and Judge James “Greg” Shaw, both former members of the Court of Criminal Appeals, disagreed with the decision.

Wise said she could not support a full annulment despite the time required.

“In these cases, the lives of the defendants are at stake and I believe such cases merit enhanced scrutiny upon direct appeal,” she wrote.

Shaw said he has performed many simple error checks of records in death penalty cases and he sees “no compelling reason” to override the review.

“It worries me that the fact that there was simple error checking on direct appeal will no longer encourage confidence in the death penalty and death sentence. In my view, thorough simple error checking of a death penalty case further direct appeal serves the interests of both the state and the defendant,” he wrote.

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Since September, Alabama has called off two separate executions after state officials were unable to find a suitable vein for the lethal injection before the death sentence expired. In July, the state completed the execution of Joe Nathan James Jr., but only after a similar access issue caused a three-hour delay.

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The sun sets behind William C. Holman Correctional Facility in Atmore, Ala.
(AP Photo/Jay Reeves)

The state also had one failed execution in 2018.

Ivey announced a top-to-bottom review of execution procedures in November 2022.

The Associated Press contributed to this report

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