On Monday, Alabama Gov. Kay Ivey put a temporary halt to executions in her state in response to a string of breakdowns in Alabama's death penalty system. She also called for a "top to bottom" review of the state's execution process.
The governor's decision is long overdue. But her belief that the death penalty system can be fixed is a delusion.
What the Mother Goose nursery rhyme told us about Humpty Dumpty's great fall is also true for capital punishment, both in Alabama and all across the country: All the king's horses and all the king's men can't make the death penalty just, fair or even functional.
Ivey's announcement came just days after another Alabama execution was botched and halted before it could be completed.
On Nov. 16, the state stopped the execution of Kenneth Smith after officials spent an hour stabbing him with needles in a failed attempt to set intravenous lines.
Smith had been strapped to a gurney for four hours while the state waited for the final resolution of his legal appeals. Once those were resolved, execution team members tried again and again to set the necessary IV lines.
As the Montgomery Advertiser reported, "They punctured 'several' locations on his body with needles. Ultimately, they were able to establish only one of two necessary intravenous lines before attempting a central line procedure… which is the alternative method for gaining IV access in Alabama's redacted execution protocol."
Insertion of an IV line into a central vein is a complicated procedure which is usually performed by a surgeon or an interventional radiologist, neither of which would have been present at Smith's execution.
In September, Alabama also called off Alan Miller's execution and sent him back to death row. It was stopped after officials spent 90 minutes jabbing him repeatedly with needles as they tried to find a vein to insert the IV line that would carry the deadly chemicals.
In the gruesome litany of failed executions, Smith and Miller joined Doyle Hamm, whose lethal injection Alabama botched in 2018, and Joe Nathan James, whose execution the state botched in July of this year.
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But Alabama has an even longer history of such dreadful failures. In 1983, the state put John Evans to death in the electric chair but not before he literally caught on fire. His execution took 14 minutes and left his body charred and smoldering.
Six years later, Alabama botched the electrocution of Horrace Franklin Dunkins Jr. after the execution team had improperly connected the cables that carried the current to the electric chair. The cables had to be reconnected before a second lethal jolt of electricity was administered.
As the actual or attempted executions of Hamm, James, Miller and Smith demonstrate, Alabama's success in carrying out executions without incident did not improve when it switched to lethal injection.
Smith and Miller also give the state the dubious distinction of having two people on its death row who survived a state's effort to kill them. Never before in American history has one state had two execution survivors alive at the same time.
Alabama now joins Ohio and Tennessee as states which have paused executions in the face of failures and breakdowns in their death penalty systems.
In 2019 Ohio's Republican governor, Mike DeWine, halted executions after a federal judge raised serious questions about the state's execution protocol, ruling that the protocol could cause the inmate "severe pain and needless suffering."
At the time, DeWine told reporters, "As long as the status quo remains, where we don't have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio. That would not be right, at least in my opinion."
Alabama has now achieved a dubious distinction: Never before in American history has one state had two execution survivors alive at the same time.
At the time, the governor refused to say whether he thought the death penalty could be squared with the Constitution's prohibition of cruel and unusual punishment. As he put it, "We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I'm not going to go further down that path any more today."
In May of this year, Tennessee Gov. Bill Lee followed Ohio's example and paused executions, after learning that the drugs scheduled to be used in a forthcoming execution had not been properly tested. Lee also ordered an independent investigation of the troubles that have plagued the state's death penalty system.
As the Associated Press reported, "For several years, Tennessee has had problems following the state's rules governing the conduct of executions, including problems in the compounding of drugs, in testing, storing and administering them."
The AP also noted that "Tennessee's problems in following its own lethal injection protocol are more extensive and complicated than state officials have acknowledged — and sorting through them may take longer, possibly years, before an execution that passes constitutional muster can take place."
In addition to the states that have paused executions pending the results of ongoing investigations, governors of California, Oregon and Pennsylvania have acknowledged serious defects in the death penalty system and imposed a moratorium on executions. Each has also recognized their constitutional responsibility to avoid imposing cruel and unusual punishments.
But in Alabama, Gov. Ivey did not take responsibility for Alabama's execution problems, nor did she acknowledge her constitutional duty.
Instead she played politics, pointing fingers at the very people victimized by the state's execution incompetence.
"For the sake of the victims and their families, we've got to get this right," Ivey said. "I don't buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here."
After Ivey's announcement Alabama Corrections Commissioner John Hamm promised that "Everything is on the table — from our legal strategy in dealing with last minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved,"
Hamm also insisted he was "confident that we can get this done right."
But getting things right has proven to be very illusory in the history of America's death penalty, and nowhere more so in Alabama. The state's leading officials are unlikely to get it right unless and until they own the failures and cruelties over which they and their predecessors have presided.
If they do that, however, they may well have to conclude that it is never possible to get things right in the ghastly business of state killing.
from Austin Sarat on criminal justice and capital punishment