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Last week, the Alabama Supreme Court announced a new rule change that abdicated its authority over the scheduling of executions and granted the governor broad, new, unrestricted discretion over when executions are carried out in the state. Alabama has become the only state in the country that allows executions without an established time frame, giving state executioners unprecedented power.
The high court made the rule change without any input from its own Rules Committee. Questions about whether the Alabama Supreme Court has usurped the role of the state legislature, which expressly delegated to the court the authority to schedule execution dates, are certain to emerge. While the legislature has granted the governor pardon authority and the responsibility for running the Department of Corrections, the legislature has never granted the governor power to schedule execution dates.
The new rule is also certain to trigger new litigation. Alabama’s last three executions have been plagued with “failed execution attempts” and allegations of torture and inhumane treatment of condemned prisoners. The prolonged and unexplained execution of Joe James in July 2022 and the botched attempts of Alan Miller and Kenneth Smith in September and November attracted national and international attention prompting Governor Kay Ivey to halt executions until a “top-to-bottom” review can be completed.
Until last week, the Alabama Supreme Court was required to schedule executions on a specific date. The change in rule last week shifts that responsibility to the governor. The new rule does not require the governor to schedule an execution on a specific date or within a limited period and instead allows the governor to schedule an execution “within a time frame.”
The amended rule reads: “The supreme court shall at the appropriate time enter an order authorizing the Commissioner of the Department of Corrections to carry out the inmate’s sentence of death within a time frame set by the governor.”
The new rule is unlike any other execution protocol in the country. Most states require executions to be scheduled on a specific date. No other jurisdiction in the country allows for executions to be scheduled during a “time frame” without a specified range of time that has been clearly established and reviewed.
Fordham Law School professor Deborah Denno has studied hundreds of executions by lethal injection and found that executions “should take seven-to-ten minutes from the beginning of the IV insertion process until the moment the prisoner is declared dead.”
The practical effect of allowing an execution to be carried out during an undefined “time frame” instead of a specific date is that the State could continuously attempt to execute condemned prisoners like Kenneth Smith for hours or days. In November, the State attempted to execute Mr. Smith for over an hour on the night of his scheduled execution but was forced to stop before midnight because that is when the specific date of the execution ended. Under the new rule, the State would have been able to prolong the botched execution process indefinitely.
Federal court judges in Alabama have routinely ordered stays of Alabama executions in the last year based on concerns about the reliability and constitutionality of the protocols and procedures adopted by the State. The U.S. Supreme Court vacated most of those stays, which is what triggered the botched execution attempts.