The State of Alabama put Keith Gavin to death today—the state’s third execution so far this year—despite constitutional flaws that undermined the reliability of his sentence.
Mr. Gavin was convicted of capital murder in the shooting death of a delivery driver and sentenced to death in 1999 after his appointed lawyers presented virtually nothing in mitigation at the penalty phase.
A federal court found in 2020 that Mr. Gavin’s lawyers were ineffective in violation of Mr. Gavin’s right to counsel and held that the constitution requires a new sentencing trial, but the decision was reversed on appeal.
Questions About the Reliability of Mr. Gavin’s Death Sentence Persist
The Constitution guarantees effective assistance of counsel, which means that defense lawyers representing a person facing the death penalty are expected to investigate and present evidence demonstrating why the jury should reject the death penalty and impose a life sentence.
There was compelling evidence about Mr. Gavin’s life that could have persuaded the jury to choose life imprisonment without parole in his case.
Keith was born into a family struggling with histories of drug abuse, alcoholism, and incarceration and, as the federal court found, “grew up in a gang-infested housing project in Chicago, living in overcrowded houses that were in poor condition, where he was surrounded by drug activity, crime, violence, and riots.”
Keith tried to shield his 11 brothers and sisters from their abusive father by taking the blame for them and was frequently beaten with extension cords, sticks, hoses, and his father’s fist.
In Chicago, Keith was the frequent target of gang violence and was brutally beaten at 17 and hospitalized. When he retaliated he was sent to prison, where he was frequently stabbed by gang members and continued to be victimized. Despite the constant threat of violence, Mr. Gavin earned his GED and took college courses in prison, and with only one major disciplinary write-up in 17 years, he became what the State’s expert called a model prisoner, which was a critical fact related to the jury’s decision to impose a sentence of life imprisonment without parole or death.
But Mr. Gavin’s jury never heard this evidence because, as the federal district court found, his lawyers failed to do the investigation and preparation that the constitution requires.
As Mr. Gavin’s mother lamented, “her son had no money to retain a ‘real attorney.’” Instead, he was appointed counsel who, the federal court found, “did not conduct an adequate background investigation, did not pursue all reasonably available mitigating evidence, and did not make a reasonable effort to present the mitigating evidence they had.”
Mr. Gavin’s lawyers “were totally unprepared for the penalty phase,” the court held. They called only two witnesses at the penalty phase—a minister who did not know Mr. Gavin before his arrest and Mr. Gavin’s mother. Counsel spoke with the minister for only five minutes before putting him on the stand and got his name wrong in front of the jury, and admitted at the start of his mother’s testimony that they had not prepared her for her testimony.
The jury deliberated for just 75 minutes before returning a verdict recommending the death penalty. Despite the lack of mitigating evidence, only 10 jurors voted for death—the bare minimum required to return a verdict for death under Alabama law at the time. Just a single juror’s vote was the difference between life and death.
The trial court determined that Mr. Gavin’s counsel had failed to present evidence of even a single mitigating circumstance. The court followed the jury’s advisory verdict and imposed the death penalty.
The federal court found that trial counsel’s failures undermined the reliability of Mr. Gavin’s death sentence. Because defense counsel presented no mitigating evidence, the jury did not have the information they needed to make a sound and just decision about whether to impose the irrevocable sentence of death.
But the federal appeals court reversed, ruling that the lower court was not authorized to order a new hearing merely because it found a constitutional violation. Instead, the Eleventh Circuit held, the federal court was required to defer to the state court’s decision, even if that decision was clearly wrong.
Alabama Is an Outlier
Mr. Gavin’s unreliable death sentence bears the hallmarks of the exceptionally flawed death penalty system in Alabama.
Even among death penalty states, Alabama stands out for its failure to provide adequate counsel to people facing the death penalty. Compensation rates for capital trial attorneys are extremely low, preventing qualified lawyers from providing adequate representation, and there is no statewide public defender system.
Alabama’s failure to provide constitutionally adequate legal representation for people facing the death penalty is a main reason why the state consistently ranks among the nation’s highest per capita death sentencing and execution rates.
Another reason is that Alabama allows death sentences to be imposed without unanimous agreement from all 12 jurors. This outlier practice is prohibited in almost every other state. Indeed, until Florida changed its law last year, Alabama was the only state that allowed a person to be condemned to death without a unanimous jury vote.
In nearly every other state, the jury’s nonunanimous verdict at sentencing would have barred Mr. Gavin’s execution.
Alabama also stands out as the state with the worst record of failed and botched executions after its torturous multi-hour execution of Joe James and its failed attempts to execute Alan Miller and Kenny Smith in 2022.
Between 2018 and 2022, Alabama had one botched execution and three failed execution attempts. But rather than comprehensively or independently investigate these problems, the State briefly paused executions and then, in January, killed Kenny Smith by nitrogen suffocation—an experimental, never-before-used method that, eyewitnesses reported, left Mr. Smith writhing in agony, struggling and choking for an extended period of time.
As death sentences and executions continue to trend down nationwide, Alabama is responsible for an outsized share of executions, putting to death three of the 10 people executed so far in 2024. No state—not even Texas—has executed more people than Alabama this year. And within the next three months, Alabama plans to raise its total to four people killed by the State.