Alabama’s Death Penalty

Alabama is an outlier. As the death penalty declines across the country, Alabama still sentences more people to death per capita than any other state.

Alabama stands out among death penalty states for its failure to provide adequate counsel to people facing the death penalty at trial or on appeal. Compensation rates are too low and there’s no statewide public defender system.

Alabama was the last state to abolish judge override after using it more than any other state to impose death sentences after jury verdicts for life. Nearly 20% of the people currently on death row were sentenced to death through judicial override.

Alabama consistently has one of the nation’s highest per capita execution rates. With 66 executions and 9 exonerations since 1976, Alabama has a shocking error rate: for every seven people executed, one has been exonerated. Since 2010, Alabama has executed two people who gave up their appeals while suffering from mental illness, three people whose judges sentenced them to death even though the jury voted for life imprisonment, and a man who wasn’t allowed to prove that his intellectual disability barred his execution.

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Alabama sentences more people to death per capita (.956 per 100,000 people) than any other state.1 Death Penalty Information Center, “Death Sentencing Rates” (2013).

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Alabama has executed 66 people since 1976. It consistently has one of the highest per capita execution rates in the nation.2 Death Penalty Information Center, “State Execution Rates” (Feb. 11, 2015).

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At least 170 Alabama death sentences have been reversed by state or federal courts and resulted in an exoneration, lesser conviction, or reduced sentence.

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Since 2009, more than one-third of Alabama death sentences were imposed in Etowah, Houston, and Mobile Counties, which contain only 13% of the state’s population.

Counsel Crisis

Alabama faces a serious crisis in the quality of counsel because the state does not pay appointed attorneys enough and has no statewide public defender system. 

Compensation rates for capital trial attorneys are extremely low. Until 1999, attorneys were paid only $40 per hour for in-court work and $20 for out-of-court work, and compensation for out-of-court work was capped at $1000. Nearly half of the people currently on Alabama’s death row were convicted under this compensation cap.

Low compensation rates continue to prevent qualified lawyers from providing adequate representation. The current hourly rate of $70 for trial lawyers is far below market rates. And attorneys appointed on direct appeal—where they must raise all trial errors to two state appellate courts—are paid $70 per hour with a cap of $2500 per court.

Deficient Representation

Without enough funding, it’s no surprise that Alabama courtrooms have seen terrible lawyering.

Court-appointed capital defense lawyers are paid so little that many refuse the work, so appointments often go to young, inexperienced lawyers—or older ones who earn a living through court appointments—leaving many people charged with capital offenses with inadequate representation at trial. One drunken attorney was ordered to sleep off his intoxication in jail during his client’s capital trial,3 Sara Rimer, “Questions of Death Row Justice For Poor People in Alabama,” New York Times (Mar. 1, 2000). while another who represented capital defendants claimed to be a “mystic, clairvoyant, and prophet” who heard voices and relied on alleged paranormal powers in his representation.4 Neelley v. State, 642 So.2d 494, 498 (Ala. Crim. App. 1993).

Postconviction Proceedings

People charged with capital murder in Alabama who cannot afford an attorney are constitutionally entitled to counsel for trial and direct appeal only.

People sentenced to death who lose their direct appeal can file a postconviction petition in state court—which is the only way to argue that trial counsel was ineffective, the prosecutor hid favorable evidence, or jurors engaged in misconduct. Those claims require new evidence that’s not included in the trial record.

As Alabama appellate court justices and bar presidents acknowledged in a friend-of-the-court brief to the U.S. Supreme Court:

Our capital system in Alabama is in disarray. Without counsel to vigorously represent death row inmates in state postconviction, we know that there have been instances where justice was not served.

Every state with the death penalty provides legal assistance for postconviction proceedings—except Alabama.5 Maples v. Thomas, 565 U.S. 266 (2012). Until 2018, Alabama provided no legal assistance to prepare and file postconviction claims. People on death row cannot investigate and discover new evidence from their prison cells. And it’s so difficult to navigate the complex legal and technical requirements that postconviction petitions filed without a lawyer’s help usually wind up procedurally barred, even if they include valid claims.

Adequate postconviction representation requires hundreds of hours of work, including

  • reading a trial record that often runs thousands of pages
  • conducting a factual investigation
  • conferring with the client, and
  • researching and writing legal documents.

But for all this work, Alabama caps compensation at $7500, forcing lawyers to either skip important steps in their representation or work below minimum wage. (Before 2018, the cap was $1500.)

EJI believes that Alabama needs a statewide indigent defender system and adequate compensation for appointed attorneys to ensure that poor people receive quality legal representation at all stages of the capital process.

Executions

Alabama has executed 66 people since 1976. It consistently has one of the highest per capita execution rates in the nation.

Method of Execution

Lethal injection is the primary method of execution used by states and the federal government. States use a variety of protocols with one, two, or three drugs. The one- and two-drug protocols typically use a lethal dose of an anesthetic or sedative. The three-drug protocol uses an anesthetic or sedative, usually followed by pancuronium bromide to paralyze the person and potassium chloride to stop their heart.6 Death Penalty Information Center, “Overview of Lethal Injecton Protocols.”

Traditional lethal injection drugs like pentobarbital have become harder for states to get because manufacturers won’t sell them for use in executions. So states are illegally importing drugs, buying drugs from poorly regulated compounding pharmacies, and experimenting with untested drugs. Many passed secrecy laws so they don’t have to reveal to courts, media, or the public where they’re getting lethal injection drugs or how they’re using them.7 Death Penalty Information Center, “Behind the Curtain: Secrecy and the Death Penalty in the United States” (2018).

Secret experimental protocols led to three dramatically botched executions in the first seven months of 2014 alone.8 Ben Crair, “2014 Is Already the Worst Year in the History of Lethal Injection,” The New Republic (July 23, 2014).

  • On January 16, Ohio tried an untested two-drug mixture on Dennis McGuire, who struggled, made guttural noises, gasped for air and choked for about 10 minutes before being declared dead
  • Oklahoma botched the April 29 execution of Clayton Lockett, who grimaced and writhed on the gurney, clenching his jaw and appearing to be in pain, until officials closed the curtain, called off the execution, and then declared him dead of an apparent heart attack
  • Arizona’s execution of Joseph Wood in July using a secret experimental drug protocol took more than two hours, during which witnesses reported that he gasped and snorted more than 600 times

In 2011, Alabama executed Jason Williams using a secret combination of drugs after drugs it had purchased illegally were confiscated by the DEA.  In 2016, Ronald Bert Smith clenched his fists and raised his head, then heaved, gasped, and coughed while struggling to breathe for 13 minutes after lethal drugs were administered. And in 2019, witnesses observed disturbing evidence that Michael Brandon Samra struggled on the gurney before he died.

In 2018, Alabama joined Oklahoma and Mississippi in authorizing executions by nitrogen gas, a method that has never been used before anywhere in the world. There are a lot of concerns about this method of execution, including that:

  • there is no scientific evidence on executing people with nitrogen
  • the American Veterinary Medical Association has declared nitrogen hypoxia inappropriate for euthanizing animals because it causes distressing side effects
  • nitrogen is not used for terminal patients in states where medically assisted dying is legal
  • pulmonary medicine and anesthesiology experts say carbon dioxide could build up and cause feelings of suffocation
  • there are different grades of nitrogen, with different purities and regulations
  • observers would need protection, and because nitrogen kills by replacing oxygen, it would have to be cleared from the room before anyone could enter to declare death and remove the body.9 Denise Grady & Jan Hoffman, “States Turn to an Unproven Method of Execution: Nitrogen Gas,” New York Times (May 7, 2018).

Exonerations in Alabama show how racial bias, inadequate legal counsel, and official misconduct undermine the reliability of the death penalty.

Walter McMillian, who is black, was convicted and sentenced to death for the murder of a young white woman who worked as a clerk in a dry clearing store in Monroeville, Alabama. Law enforcement put him on death row before his trial, which lasted less than two days. The jury ignored multiple alibi witnesses, who were black, who testified that Mr. McMillian was at a church event at the time of the crime. And the trial judge ignored the jury’s life verdict and sentenced Mr. McMillian to death. He was released after EJI showed the State’s witnesses lied on the stand and the prosecution illegally suppressed exculpatory evidence.

Gary Drinkard’s appointed lawyers failed to present evidence showing he could not have committed the crime. He spent six years on death row before new lawyers won a new trial and proved Mr. Drinkard was at home when the crime was committed. He was acquitted in 2001.

Anthony Ray Hinton spent 30 years on Alabama’s death row based solely on the State’s assertion that a revolver taken from his mother’s home was the gun used in both murders and in a third uncharged crime. Prosecutors refused to re-examine the case after EJI proved the revolver could not be matched to crime evidence, and it took 12 more years of litigation and a ruling from the U.S. Supreme Court to finally win his release.

Judge Override

Alabama is the only state where judges have routinely overridden jury verdicts of life to impose capital punishment.

Since 1976, Alabama judges have overridden jury verdicts 112 times. The override statute gave judges authority to override life or death verdicts, but 91% of overrides overruled jury verdicts of life to impose the death penalty.

Judge override has been a significant contributor to Alabama’s high death sentencing rate. Nearly 20% of the people currently on death row were sentenced to death through judicial override. 

Florida and Delaware—the only other states that permitted judge override—ended it in 2016.10 Debra Cassens Weiss, “Supreme Court Stays Execution of Alabama Man in Judicial Override Case,” ABA Journal (Jan. 29, 2018).

Alabama became the last state to abolish judge override on April 11, 2017. State prosecutors have argued the new law does not affect earlier cases and are still seeking to execute people sentenced to death by elected judges who overrode jury life verdicts.