Alan Miller had spent the six months leading up to his execution confined to his cell. Though Miller was never given an explanation for the heightened captivity, which had over the past few years become routine for people facing execution in Alabama, he used the time to conduct his own research on the state’s plan to kill him with nitrogen gas. 

A Discovery Channel program on scuba diving he’d watched made him especially worried about contracting decompression sickness, otherwise known as the bends. Though Miller’s eyes, nose, and mouth would be covered by a respirator mask, he feared that air would enter his ears and prolong his death — or worse, keep him alive but unable to function. To avoid that risk, he said he asked some prison guards whether he could put tissues in his ears to block them. The guards told him it was above their pay grade and to take it up with the people in charge.

Miller, 59, had been forced to consider the possibility that things could go wrong. Research on killing humans with nitrogen gas — by pumping it through a hose into an industrial respirator mask — was extremely limited, and state officials refused to disclose how they developed the novel method. Alabama is the first and only state to use nitrogen for executions, and had done so just once before. Witnesses described the man, Kenneth Smith, writhing in “seizure-like movements” for two minutes, despite state officials promising he’d lose consciousness “seconds” after the gas started flowing and die after about five minutes. Even the son of the victim was startled by what he saw, telling the New York Times that it conflicted with what state officials had told him to expect. “With all that struggling and jerking and trying to get off that table, more or less, it’s just something I don’t ever want to see again,” he said. Afterwards, Alabama officials offered to help other states adopt execution by nitrogen. 

Leading up to Smith’s execution, one doctor had warned there was a chance the method might not kill him and would inflict such significant brain damage that he’d be left in a vegetative state. 

Miller insisted he’d rather die. “I don’t want to be a vegetable,” Miller told me several times in a thick Southern drawl as we sat across from one another in the dilapidated visitation room at Holman Correctional Facility, a maximum security prison in Atmore that houses Alabama’s death row and execution chamber. 

Miller didn’t have anything to worry about, state lawyers had said. Smith, they wrote in court documents, reacted so violently because he held his breath.

Miller said he had no plans to fight his execution. All he asked was that the state hold up its end of the bargain and give him a quick and peaceful death. Over the summer, he’d agreed to a settlement with the state to help ensure that would happen. The terms were confidential. 

Miller had faced execution before, and survived. 

Almost exactly two years ago, he sat in the same visitation room with his family and lawyers and said what he thought would be his final goodbyes. But he left the execution chamber alive after his executioners failed to establish an IV line for lethal drugs, despite poking him all over his body and hoisting the gurney vertically into the air to suspend him for 20 minutes. He was one of six people in the U.S., and one of three people in Alabama, to survive their execution during the modern death penalty era.

“It’s like déjà vu,” Miller said as he waited again for the state to execute him. Four family members and two lawyers had come to visit. He told me he was irritated that the state was putting them through another execution, and hoped they’d do it right this time. 

His visitors reassured him that everything would be OK. Miller’s brother, who worked as an EMT and firefighter for decades, had plenty of experience wearing a respirator and also witnessing death. “You’ll be just fine,” he told Miller. We all nodded in agreement. 

I would join two of Miller’s lawyers, his brother, sister, and sister-in-law to witness the execution. As we exited the prison around 4:40 p.m., a message brightly painted on an overhang to “Have a great day!” seemed to taunt us. We then loaded ourselves into a white corrections van that took us to a trailer, where we waited for the execution to begin. There, we sat passing the time with inconsequential conversation. Halloween decorations, Taylor Swift, and lawn maintenance were brief distractions from the reality that we were about to watch Miller die. 

If, as the state had suggested, all that Miller needed to do for a quick and painless execution was to not fight it — to willingly breathe in the lethal gas — then Alabama’s second nitrogen execution should have gone smoothly. Instead, once the nitrogen started flowing, we watched from the witness room as Miller thrashed and jerked on the gurney, shaking and pulling at his restraints. On the other side of the glass, John Muench, Miller’s spiritual adviser, stood inside the execution chamber feet away from Miller as he gasped for air.

Muench, who is also a physician, told me he’d seen plenty of death but said Miller’s looked more anguished than most. “We don’t see people jerking around like that while they’re dying normally,” he said. “His face was twisted and he looked like he was suffering.”

In the years leading up to his execution, Miller was adamant: He didn’t remember committing the crimes that had landed him in this situation in the first place. 

Like the majority of people on death row, Miller endured years of childhood trauma. He also came from a family with a long history of mental illness, according to a 2013 appeal that contained a detailed account of his upbringing. Miller’s great-grandmother once tried to kill her children and was committed to Bryce Hospital, Alabama’s psychiatric facility. Her son, Miller’s grandfather, was admitted to Bryce five times for illnesses such as paranoid type schizophrenic reaction and manic depressive psychosis. Of his sons, three had a history of severe mental illness. One of Miller’s uncles was in prison for murder. 

Miller’s father, Ivan, suffered from paranoia, and always thought that people were plotting against him or trying to harm him — including his own wife, who he thought tried to poison him. Ivan also heaped physical and psychological abuse onto Miller, who he claimed was not his child and called “little red headed bastard.” Family members say that Ivan regularly hit Miller and threatened him with knives and guns, sometimes even shooting bullets into the floors. On one occasion, Miller’s father threatened to take him and his brother out to the woods and see if God would intervene before he killed them. 

Despite Ivan’s abuse, Miller grew up to be a rule-follower and a hard worker. He avoided drugs and alcohol and held several jobs. Ivan, however, still bullied his son, telling him that he wasn’t masculine and calling him gay. Then in July 1999, his family began to notice that something about Miller seemed off. They would later say that Miller, then 34, talked to himself and daydreamed more frequently. Around this time, he also started suffering from constant headaches and ringing in his ears.

On August 5, 1999, Miller drove to work at Ferguson Enterprises, a plumbing and HVAC supply wholesaler, in Pelham, a small city just south of Birmingham. When Miller’s boss, Johnny Cobb, walked into the building, Miller was holding a pistol. “I am sick and tired of people telling rumors on me,” said Miller, according to Cobb, who Miller told to leave the building. When Cobb returned, he saw that two of his employees, Scott Yancy and Lee Holdbrooks, had been shot to death. 

Miller then drove to a previous job at Post Airgas and asked for Terry Jarvis. “Terry you’ve been spreading all kinds of rumors around about me,” Miller said before shooting Jarvis several times, killing him, according to David Adderhold, the store manager, who then pleaded with Miller to spare him. Miller obliged and instructed him to leave.

Police stopped Miller as he drove south on I-65 and arrested him without incident. His pistol, the murder weapon, sat on the passenger seat. When police subsequently interrogated him at the Pelham police station, Miller asked, “I’m being charged with something? … I don’t understand what you’re saying,” according to his appeal. He later said he thought his co-workers had started a rumor he was gay. 

There was no question that Miller had committed the murders.

Still, the state’s psychologist who evaluated Miller said that he had no memory of the shootings and there was a chance that he may have lost touch with reality and dissociated.

Despite this possibility, Miller’s court-appointed lawyers failed to mount a defense during his trial and did little to convince the jury to spare his life because he was mentally ill. Still, some jurors thought he should’ve been shown mercy. He was sentenced to death by a vote of 10–2. (Alabama and Florida are the only states that don’t require all jurors to agree to send someone to death row. Approximately 6 out of every 10 prisoners on death row in Alabama were sentenced to death by a split jury, according to a 2023 report by the NAACP Legal Defense and Educational Fund.)

Later, Miller’s appellate lawyers would argue that his death sentence was unconstitutional. They retained a psychologist who concluded that Miller suffered from PTSD with dissociative features, a common diagnosis for people who have experienced significant trauma. Like the state’s expert, she concluded that Miller was experiencing a dissociative episode at the time of the shooting. 

Even as he waited to be executed, Miller didn’t recall what he had done. After I sat down with him on the morning of his execution, I asked him what he wanted the world to know.

“I didn’t do anything to be in here,” he told me. “If the judicial system had done its job, I would not have been convicted.” 

He elaborated, quickly darting in and out of thoughts and names that were difficult to follow. I asked if he was referring to the shooting. Miller said he didn’t remember it.

During the rest of our conversation, Miller would at times cup his left ear toward me to signal that he was having trouble hearing. His ears had been ringing since he was a kid, which he thought was from his dad hitting him in the head. He’d devised his own methods for tuning it out, like playing video games on his tablet inside his cell. “I try to go blank,” he said.  

Miller recounted returning to his cell after his first execution was called off. The other men on death row were eager to talk with him about what he had just experienced. 

“They asked me what it’s like. I told them you lay there and they stab you,” he recalled nonchalantly. Miller told me that after the failed execution, he just wanted to go to sleep. The experience was not as remarkable as it might have seemed, he said — his father had threatened him with death so often that he was used to it.

Miller’s brother Jeff Carr, who was sitting next to me in the visitation room, said he was stunned when he found out that Miller was in jail for three murders.   

Jeff and his wife Sandra Carr later told me that they thought the death penalty was appropriate for certain people, but that Miller wasn’t one of them. They remembered seeing an unfamiliar look in his eyes after he was arrested, like he had snapped. “That was not the Alan we knew,” Sandra said. “What he told his mother was, ‘They said I did this, but I don’t remember it.’”

About 90 minutes after we last saw Miller, prison guards dressed pristinely in sky blue and navy uniforms came to get us from the trailer where we’d been waiting for the execution to start. They led us single-file through a red door and down a cinder-block hallway affixed with a monitor that would alert us in the event of a nitrogen leak. A piece of black tape covered the manufacturer’s name — the state’s attempt to prevent us from knowing whose products were entwined with this new way of killing. We filed into the witness room along with media witnesses, staring ahead into a glass window covered by a curtain. A white license plate hung above the window, instructing us to “STAY SEATED AND QUIET.”

Minutes later, Brandon McKenzie, the prison guard who leads Alabama’s execution team, pulled the blue hospital curtain open, revealing Miller, who was lying strapped to the gurney and tightly enveloped in a white sheet. A blue-rimmed respirator mask covered Miller’s entire face, from his forehead down to his chin. A strip of black tape had also been placed to conceal the mask manufacturer’s name. A hose that ran from the wall behind Miller was connected to a valve on his right side. The setup looked cheap and improvised, like a scene from a low-budget horror movie. 

After Holman warden Terry Raybon read the execution warrant, McKenzie unscrewed the cap to another valve on the left side of Miller’s respirator. The witness room filled with the sound of hissing gas, making it difficult to hear Miller as Raybon held the microphone up to the mask for his last words. “I didn’t do anything to be in here,” Miller said. Some of his words were inaudible, but he mentioned someone not doing their job and asked his sister, Cheryl, to take care of his brother Richard. At one point, Raybon pulled the microphone away from Miller before he was finished talking and had to stick it up to his face again. 

Once Miller finished speaking, Raybon opened the door behind them and disappeared from the execution chamber. McKenzie, the captain of the execution team, remained in the room, checking the mask and feeling its seal around Miller’s face — a step that is supposed to determine whether the mask is tight enough to keep out oxygen. A pulse oximeter monitoring Miller’s oxygen levels was clipped to his ear. After some time, McKenzie then called Miller’s spiritual adviser over to the gurney, who laid one of his hands on Miller’s left leg. It’s unclear when the nitrogen gas started, but I saw Miller’s stomach rise and fall like he was breathing normally. It did not appear that he was attempting to hold his breath. For a second, it seemed as if he might die peacefully after all. 

Then suddenly, Miller started jerking and shaking, struggling against the restraints. While this was happening, he gasped for air and his eyes were open, staring at the ceiling and darting back and forth. This went on for about two minutes before Miller stopped moving. 

Then, for the next five or six minutes, Miller periodically gasped for breath. Some of the gasps were so large that his head lifted off the gurney. His left hand turned blue. 

At 6:32 p.m., about 15 minutes after the gas began to flow, a guard closed the curtain to the execution chamber. Minutes later, a guard unlocked the witness room and told us to exit. 

I again climbed into the van with Miller’s lawyers and family, and we were dropped off in front of Holman. Earlier, an employee told us not to loiter in the parking lot. He apparently meant what he’d said, watching us closely as we walked back to our cars. 

Afterwards, Alabama Department of Corrections Commissioner John Hamm gave a press conference. Asked about Miller’s violent reaction to the gas, Hamm assured reporters that everything had gone according to plan. “There’s going to be involuntary body movements as the body is depleted of oxygen. So that was nothing we did not expect,” he said. 

Alabama Attorney General Steve Marshall gave a similar statement. “Tonight, despite misinformation campaigns by political activists, out-of-state lawyers, and biased media, the State proved once again that nitrogen hypoxia is both humane and effective,” he wrote. Notably, Marshall was not present for the execution. Still, he said it “progressed as planned. After Miller appeared to lose consciousness, his body took some agonal breaths and made slight movements associated with the dying process.”

I emailed my own observations to ADOC and asked whether the agency stood by these statements but did not receive a response.

About 10 days after the execution, Jeff and Sandra Carr, Miller’s brother and sister-in-law, told me the past week had been an emotional rollercoaster. They said they’d been trying to keep it together by sticking to their normal routines, like going to the gym at 5:30 most mornings, a regimen we’d discussed in the prison trailer while waiting to be taken to the execution chamber. 

Having made the eight-hour round trip drive from their home in north Alabama to Atmore two years ago when the state first attempted to execute Miller, they’d known some of what to expect in those final days with him. Jeff said he tried to be strong for his brother and compartmentalize his feelings, even as Miller was worried about them witnessing this next attempt at executing him. “He didn’t want us, I guess, having to watch what was fixing to happen. But you know, we were going to be there,” Jeff said. 

When we discussed what happened that night, Sandra told me that Gov. Kay Ivey and Marshall should have been there to observe the execution for themselves. “If you’re going to sign somebody’s death warrant, you need to be there to witness it and see how it goes,” she said. 

Sandra added, “Nobody should have to witness something like that.”

I described what I saw to Gail Van Norman, an anesthesiology professor at the University of Washington. She told me that Miller’s reaction was “entirely predictable” and sounded consistent with the reactions of animals suffocated with nitrogen during scientific studies. 

“Yeah, he was awake,” she said. “The textbook says that when you do this to a mammal, they’re going to suffocate, they’re going to know it’s happening. They’re going to try to escape it. They’re going to struggle, they’re going to shake, they’re going to lose their coordination, and they’re going to die a horrible death.” That’s why, Van Norman explained, the American Veterinary Medical Association says that most mammals should not be euthanized with nitrogen. 

It didn’t matter that Miller wanted to cooperate, she said, because nobody actually knows if humans are capable of breathing deeply while being suffocated by nitrogen gas. “Even if they’re capable of it, and they do breathe deeply, I have no reason to believe that it will go any differently,” Van Norman told me. “You’ll still see the gasping, you’ll still see shaking, jerking, discoordination.” 

Miller’s reactions might have looked even worse if he weren’t bound to the gurney and was allowed to roam free, she said. “He’d probably be clawing at the doors and pounding at the windows, trying to get out but he can’t because they’ve tied him down to a gurney, so the only actions left to him are to jerk and grimace and lift his head up and try to do those things.”

Van Norman’s comments reminded me of how intensely Miller had flailed and pulled at his restraints, as if his body would have leapt from the gurney were it not strapped down.  

Marshall’s assessment that Miller had lost consciousness had no scientific basis, Van Norman quipped. She explained that it would’ve been impossible for him to tell because new scientific research on consciousness has shown that there’s actually no way to determine whether someone is unconscious. “Somebody who says that is just saying it off the top of their head or out of wishful thinking, or because they haven’t read the literature,” she said.

Van Norman’s explanation defied everything legislators had promised about execution by nitrogen gas. Alabama lawmakers adopted it as a method in 2018 amid national drug shortages and legal challenges over the constitutionality of the way it carried out lethal injections. State Sen. Trip Pittman, who had sponsored the nitrogen legislation, billed the method as “more humane.” (I sent Pittman, who is no longer in office, an email asking whether he stood by that statement following Miller’s execution, but he never answered.)

There was hardly any science to support the assertion. Former Oklahoma Rep. Mike Christian came up with the idea to execute prisoners with nitrogen after watching a BBC documentary called “How to Kill a Human Being,” which followed a British Parliament member turned journalist in his quest for the perfect execution method. “The process is quick and painless,” Christian told reporters in 2015. “It’s foolproof.” (Christian also did not answer my email asking whether he still believed that.) 

The method, which is scientifically known as nitrogen hypoxia, is supposed to starve the brain of oxygen by replacing it with nitrogen: a colorless, odorless gas that comprises 78 percent of Earth’s atmosphere but is deadly when inhaled on its own. Nitrogen poisoning has killed nearly 100 people since 1992 in accidents at industrial plants, laboratories, and medical facilities. 

Despite authorizing nitrogen hypoxia as an execution method, Oklahoma officials have said they will continue to carry out lethal injections and have no plans to pivot to nitrogen. Mississippi, which approved the method in 2017, has yet to use it either.

In Alabama, death row prisoners were given the option to choose whether they wanted to be executed by the gas over a 30-day period in 2018. But the prisoners and their lawyers say that the state did not make them aware of this choice until five days before the deadline and did not give them enough time to gather information about the method. 

Alabama has refused to publicly release details about how it created its protocol. Legal documents show that officials relied on state employees to test the method, but there’s no record of ADOC testing how a human would react to nitrogen flowing into the mask. The department instead conducted an experiment placing the mask on top of a sheet and towel and measuring oxygen levels. 

Even with limited testing, the state’s expert Dr. Joseph Antognini, a retired anesthesiologist who routinely testifies on behalf of states defending their execution methods, said in court that the system would render Kenneth Smith, the first man executed by nitrogen in January, unconscious within 30 to 40 seconds after the nitrogen began. Antognini did not return my request for comment about the discrepancy between his prediction and what witnesses saw during both nitrogen executions.

Other experts were much less optimistic. Dr. Philip Bickler, an anesthesiologist and director of the Hypoxia Lab at the University of California, San Francisco, said in a recent court filing that there is little scientific research on what happens when humans are forced to breathe in large volumes of nitrogen, but that quickly starving someone of oxygen is likely to cause a feeling of “impending doom.”

Bickler, who has conducted his own research on the effects of nitrogen hypoxia, submitted an affidavit for Miller’s lawyers as they argued that the nitrogen method violated his Eighth Amendment protections against cruel and unusual punishment. In it, he wrote that “any form of execution by nitrogen hypoxia is cruel and inhumane” and warned that Miller’s asthma “would likely prolong the death process.”

Despite these warnings, Marshall, the attorney general, has offered to help other states execute people with nitrogen gas. 

“To my colleagues across the country, many of which were watching last night, Alabama has done it,” Marshall said after Smith’s execution early this year. “And now so can you. And we stand ready to assist you in implementing this method in your states.”

Legislators in Ohio, Louisiana, and Nebraska took Marshall’s lead, introducing bills to authorize the method. In a letter to Nebraska Sen. Loren Lippincott, the sponsor of the state’s bill, Marshall championed the use of nitrogen to execute prisoners, calling media accounts of Smith’s execution “sensational.” Nitrogen, he told the Nebraska lawmaker, was not subject to the drug supply issues that made it difficult to carry out lethal injections and it would be more difficult to fight in court. “Adopting nitrogen hypoxia and allowing condemned killers to elect this method of execution will either expose their litigation games for what they have been, or it will provide them the humane death that they have claimed to be pursuing,” Marshall wrote.

Even with Marshall’s fervent support, the Nebraska bill did not make it out of committee. 

Meanwhile, Louisiana passed legislation authorizing nitrogen executions during a special session on criminal justice called by Gov. Jeff Landry a month after he took office. The state hasn’t killed a prisoner since 2010, but Landry has made it a priority to restart executions. Rep. Nicholas Muscarello, a Republican who drafted the bill, told me shortly after its passage that he was inspired by Alabama’s adoption of nitrogen executions. In the process of introducing his bill, Muscarello said he received a letter from Marshall that “basically supported the form of execution.” He initially agreed to share the letter but later said he was unable to find it.

Calling the death penalty a “tough issue,” Muscarello said he had done his own research on Smith’s execution by nitrogen asphyxiation but did not have an opinion on witness accounts. “I just looked at the legality of it and it was ruled constitutional,” he said. “I’m a lawyer, I wasn’t gonna get drawn into the emotional debate, I wanted to keep them focused on the legal debate.”

As Alabama officials plan to execute a third person, Carey Dale Grayson, by nitrogen in November, his lawyers have alleged that the method “carries an unacceptable risk of conscious suffocation” and violates the Constitution. They’ll argue their case in a federal hearing this week. 

Their expert, Dr. Brian McAlary, a Virginia anesthesiologist, reviewed Smith’s autopsy, which showed that his lungs were filled with fluid and blood when he died. The finding, he said, was consistent with the condition of someone’s lungs after they’ve been strangled or smothered with a plastic bag. In an affidavit, McAlary concluded that “the risk of undue agony attending this protocol is a medical certainty.”

Grayson’s lawyers had unsuccessfully asked to film Miller’s execution to settle questions over prisoners’ reactions to the gas. Marshall, the attorney general, said there was no need to do so because the media, the same group he called “biased,” would be there to provide an accounting. Hamm, the commissioner, opposed the request, stating that a recording “would severely undermine the solemnity of the occasion.”

Muench, the spiritual adviser and physician who stood next to Miller as he thrashed on the gurney, offered a solution: “I’m sure there’s video of people being waterboarded in this world and my guess is it would look very similar.”

ADOC wouldn’t let Muench join Miller inside the execution chamber until he signed a form acknowledging that he understood the risks of being in a confined space with nitrogen gas and would stand three feet away from the respirator mask after the execution began. 

When it came time to pray with Miller, a guard motioned for Muench to walk forward to the gurney. It was Muench’s understanding that he’d have five minutes with Miller before the gas started flowing. Muench read a psalm and laid a hand on Miller to comfort him. Then, as Muench was reading the second passage they’d agreed on, the Sermon on the Mount, Miller’s head jerked up. 

He said Miller was gray and ashen and his face was twisted.

“I knew suddenly this isn’t going like we planned, and his knees started shaking at that point,” Muench recalled when we spoke after the execution. 

As Miller writhed on the gurney, Muench said it was obvious that the nitrogen gas had been turned on early. “I’m sure he was suffering certainly at the beginning of it, when he was gasping for oxygen,” Muench said. “When he lifted his head up and I could see him, he was definitely gasping.” 

He couldn’t see into the witness rooms on either side of him but saw into another room behind him where men and women dressed in suits and dresses sat. Presumably, they were state officials who had earlier piled out of a black sprinter van into the prison to watch the execution. 

Watching Miller shaking on the gurney, Muench wanted to intervene. “I didn’t feel like there would be anything possible that I could do, but I very much felt, when he started jerking, that we need — we should stop this at some point.”

The post “Agony” and “Suffering” as Alabama Experiments with Nitrogen Executions appeared first on Bolts.

As the leader of Alabama’s execution team, Brandon McKenzie is sometimes the last person to touch a prisoner while they’re still alive. He has played a key role in executions, directing a team of around a dozen prison guards on execution nights and performing tasks that can impact how long it takes for someone to die or whether they feel pain. 

Alabama prison officials gave McKenzie these responsibilities even after a prisoner accused the guard of smashing his head through a window, then driving him head-first into a concrete floor. 

The injuries McKenzie inflicted were severe and lasting, according to a federal civil rights lawsuit filed by the prisoner, Lawrence Phillips, in May 2020. Phillips lost consciousness and was taken from Holman Correctional Facility in Atmore to a Mobile hospital. Medical records show he was treated for bleeding in his brain and received sutures, staples, and a neck brace. 

“I’ve not been the same since, and my memory fades in and out at the time,” Phillips wrote in his complaint. “I have nightmares, accompanied with post traumatic stress from the fears of this happening to me again.” 

McKenzie, who was promoted to captain two months after Phillips filed the lawsuit, claimed that he was acting in self-defense; attorneys from the state who represented the officer wrote in a legal filing that Phillips “angrily lunged” at McKenzie, who reacted by “using his elbow to protect himself and push inmate Phillips away, and they then collided with a glass window nearby.” Another incarcerated person who witnessed the altercation submitted an affidavit supporting Phillips’s account.

McKenzie didn’t respond to questions from Bolts and The Intercept about his role in executions or the allegations of abuse from Phillips.

While the Alabama Department of Corrections, or ADOC, ultimately concluded that the use of force was warranted, Katherine Nelson, a federal magistrate judge, thought the lawsuit against McKenzie should proceed. In a report and opinion denying the officer’s effort to resolve the case before trial, she wrote that a reasonable jury could conclude “that the force was applied maliciously and sadistically to cause harm, rather than in a good faith effort to restore or maintain order.” Court records show that in August 2023, McKenzie’s state lawyers and Phillips settled the suit. The settlement terms were not disclosed.

Meanwhile, McKenzie kept his job as captain and has overseen recent executions. That position earned him more than $135,600 last year, according to pay records reviewed by Bolts and The Intercept. 

An investigation by Bolts and The Intercept into Alabama’s execution team shows that McKenzie isn’t the only execution team member who has previously been accused of violent behavior or mistreating incarcerated people. Earlier this year, Bolts and The Intercept were given a list of names of ADOC staff members on the execution team from a lawyer who asked not to be named out of fear of retaliation. Bolts and The Intercept have independently verified 14 names on the list through interviews, court records, and personnel files. 

The records reveal that one officer on the team previously faced discipline for leaving a man hanging in his cell instead of cutting him down. Another member drunkenly attacked a jail guard in Florida. ADOC found that both of those men violated department policy.

Even after these incidents, ADOC allowed both of these officers to participate in executions, each earning more than $100,000 last year in a state where the median household income is around $62,000. One of them has been promoted since his infraction. The other was demoted.

Death penalty experts say that even these officers’ role on Alabama’s execution team raises questions about how incarcerated people are treated in their final moments. They say the officers’ backgrounds also hint at a culture of impunity among prison staff tasked with carrying out death sentences and reinforce concerns about Alabama’s ability to conduct executions as a regulated legal proceeding.

Allowing these men to work executions “shows a disregard for the sanctity of the task of carrying out an execution,” Brian Stull, a senior staff attorney with the American Civil Liberties Union’s Capital Punishment Project, told Bolts and The Intercept. “A system that cannot be trusted to keep prisoners safe is a system that should not have the right to kill,” said Alison Mollman, legal director at the ACLU of Alabama.  

Problems with the conduct of those who carry out executions in Alabama extend to leadership at Holman, a maximum security prison that houses death row inmates and the state’s death chamber. In 1999, the prison’s warden, Terry Raybon, was fired from his job as a state trooper after two women accused him of domestic violence. No charges were filed against him. Under state law, Raybon is the executioner and is responsible for pushing lethal drugs and starting the flow of nitrogen gas. 

Pointing to Raybon’s history, Mollman called the findings of Bolts and The Intercept’s investigation “unsurprising.”

ADOC did not respond to questions sent for this article, nor did the state attorney general and governor’s office. The execution team members named in this article also did not reply to requests for comment. Isaac Moody, another execution team member whose personnel record contained no history of violence or mistreatment, picked up the phone but was quick to end the call. 

“We’re not allowed to talk to any media,” Moody said. “There’s an oath, code, we take. We don’t speak about it. I could lose my job.” When asked if the code was administered by the department, he said “yeah” and then hung up.

The identities of the people involved in executions are a well-guarded secret. 

Fourteen states have enacted secrecy statutes to shield information about executions from the public since 2010. While Alabama has not passed such legislation, it remains “among the worst” states for execution transparency, says Robert Dunham, the director of the Death Penalty Policy Project.

ADOC has kept details of how Alabama carries out executions and the people behind them hidden. The state did not release its execution procedures until 2019, when it was ordered to do so by a judge. Even then, it only released a heavily redacted copy of the process the execution team is supposed to follow. State officials still continue to tightly guard records detailing the actors who carry out executions and fight in court against releasing information about their capital punishment practices. 

The members of Alabama’s execution team are not medical or science professionals, and they work among the people they execute. Together, the team is supposed to ensure that death sentences are carried out as outlined in the state’s execution procedure manual by performing a series of tasks. In lethal injections, for example, some of these team members will secure the person to a gurney before a separate team, composed of medical personnel, sets IV lines. Despite their significant roles, the majority of their activities are performed in secret without witnesses. 

Dale Baich, a federal public defender who represented death row prisoners for more than 30 years, stressed the importance of knowing the identities and personal histories of execution team members. “You don’t want someone who has a history of being abusive toward prisoners,” he said. “You don’t know if the person who is assigned to do the job is qualified.” 

The backgrounds of execution team members have taken on more importance as the state argues to the courts that it should be allowed to continue to carry out death sentences with nitrogen gas, a method it first used when it executed Kenneth Smith in January. Under the method, the execution team carries out technical responsibilities such as monitoring oxygen levels and assembling equipment used to administer lethal gas, according to the state’s execution protocol.  

Smith’s execution did not go as promised. Officials had said in court that Smith would lose consciousness “seconds” after the nitrogen began flowing. Instead, he writhed and thrashed in “seizure-like movements” for two minutes, according to The Associated Press, which was present. Another witness called it the “most violent” execution he’d ever seen. Alabama Attorney General Steve Marshall had a different opinion, calling the execution “textbook” and a “historic achievement.”

Alabama is now poised to conduct a second death sentence with nitrogen on September 26, when it will execute Alan Eugene Miller, a man the state tried and failed to execute via lethal injection in 2022. 

Miller’s lawyers have claimed the nitrogen method violates their client’s constitutional protections against cruel and unusual punishment. The state has responded by relying on testimony from McKenzie, the execution team captain, to argue that the state’s first nitrogen execution went as planned. 

McKenzie, who was inside the death chamber for Smith’s execution and fitted the respirator mask to his face before the nitrogen gas started flowing, submitted an affidavit in July. Contrary to the statements of media witnesses, McKenzie wrote in his legal filing that “I did not see Smith make any violent or convulsive movements.” Miller’s lawyers later poked holes in McKenzie’s account, noting that the guard “miraculously” made very specific claims about Smith’s oxygen levels seven months after the fact, despite “routinely not remembering other information related to the execution during his deposition,” and questioning whether he could have even seen the levels during the execution.

McKenzie is also involved in ensuring that executions do not violate constitutional protections against cruel and unusual punishment. During lethal injections, for instance, a team member is tasked with ensuring the person being executed is unresponsive after a sedative is administered so they don’t feel the pain of the following two drugs that will paralyze them and stop their heart. To do so, the team member is supposed to say the person’s name, brush their eyelids, and pinch their arm to determine whether they need more of the sedative before receiving the lethal drugs—a process that Bolts observed McKenzie perform during the execution of Keith Gavin in July.

As ADOC proceeds with nitrogen executions, Dunham, of the Death Penalty Policy Project, noted that the inconsistencies between the department’s narrative and witness testimony in executions over the last few years underscores the need for more transparency. 

“Alabama officials have shown significant impairment in telling the truth that other people observe,” Dunham told Bolts and The Intercept. “When you have a state that has a history of secrecy and a history about lying about things that other people have seen with their own eyes, that tells you that oversight is critical.”

When Tarji Jackson’s nephew, Jamal Jackson, died by suicide on Alabama’s death row in 2020, she said Alabama prison officials didn’t call her about it, even though she was listed as next of kin. Instead, she learned the news through another family member. When Tarji called Holman, she was connected to the prison’s chaplain. “All I know is that Jamal hung himself,” she told Bolts and The Intercept. “They told me no details on nothing.”

An ADOC investigation later concluded that Christopher Earl, a then-lieutenant and member of the state’s execution team, had disregarded protocol for prisoner suicides. ADOC demoted Earl in 2020, finding that he did not immediately cut Jamal down or seek medical assistance, despite department policy instructing guards to first cut the ligature and give medical workers a chance for lifesaving measures. According to department records, Earl first ordered a nurse to go back to the infirmary before asking him to return to the cell, where Jamal’s body was left hanging for nearly 12 minutes after Earl first spotted him. 

Afterward, Earl left work before Jamal’s body was picked up by the ambulance service, in violation of ADOC’s protocol for the deaths of incarcerated people.  

Then-ADOC Commissioner Jefferson Dunn determined that Earl had committed four infractions including inattention to the job, noncompliance with policies and procedures, serious violation of the rules, and “disgraceful” conduct. 

Since Jamal’s death, much of Tarji’s family has died, including her younger sister. She is still trying to understand what happened to her nephew but does not think Earl should have kept his job.

“For him to see my nephew in there, hang in and not do anything, and he’s still working. He should not be working. He shouldn’t even be at a desk in there,” she told Bolts and The Intercept.

Earl again was found to have violated ADOC policy a year later after he left three incarcerated people unsupervised in outdoor cages for three hours. He was suspended for three days. “The intent of this action is to emphasize the necessity for you to follow rules and regulations,” wrote Dunn in another letter to Earl. “Any similar infractions after this incident will result in further corrective action. Hopefully, your actions in the future will meet standards.”

Earl made more than $127,000 last year, according to pay records. 

Bolts and The Intercept sent questions about Earl’s conduct to an email account and phone number associated with him. The email went unanswered. In response to the text messages, someone who identified herself as his wife said she would not ask Earl to get in touch and threatened a lawsuit if the news organizations contacted other numbers associated with his name. 

“Sure we can set that up sometime between the hours of fuck off and never,” she wrote. “In case you didn’t know with the exhaustive amount of information you are able to access at the click of a button, members of an execution team don’t usually go on record.”

None of Earl’s violations have prevented him from participating in executions. Prior to the state’s attempted lethal injection of Alan Miller in 2022, Earl stood outside of Miller’s cell and alerted him that it was time to go to the execution chamber, according to a legal filing.

Miller is one of six U.S. prisoners to have survived his execution in the modern death penalty era. Three of those failed executions occurred in Alabama since 2018. 

During the state’s attempt to execute him, a prison guard hoisted the gurney vertically, leaving Miller, who weighed around 350 pounds, hanging in the air for 20 minutes. Eventually, Earl approached Miller and told him the death warrant had expired and guards ordered him to get off the gurney, according to a legal filing detailing the events of that evening. His body was so stiff that he asked the officers to help him bend his arms. Alabama officials never explained the maneuver, but it was not sanctioned in the state’s execution protocol that’s been publicly released. 

In July, Miller sat for a deposition as part of a lawsuit he filed over Alabama’s plan to kill him with nitrogen. “I don’t concur with being gassed by incompetent people,” Miller told lawyers with the Alabama Attorney General’s Office. During the deposition, a state lawyer said that McKenzie, who had participated in the previous attempt to execute him, would be responsible for fitting the mask used to deliver the gas. Miller’s legal team has asserted that an improper fit would increase the risk of Miller suffering. 

“It’s incompetent people fitting it,” Miller said during his deposition. “They need to be professionals, medical professionals, a third party or somebody, you know, like—are these people that are going to fit it, what’s their training?”

Alabama started executing people with nitrogen gas after a series of long and bloody lethal injections that appeared to deviate from ADOC’s execution protocol. Days after officials called off the execution of Kenneth Smith in November 2022, Governor Kay Ivey ordered a moratorium on executions and called for a review of the state’s capital punishment system. 

After just three months, Alabama wrapped up its “top-to-bottom” review of protocols in February 2023. In a letter announcing the evaluation had been completed, ADOC Commissioner John Hamm wrote that the department had reviewed its legal strategy on capital litigation, training procedures, and equipment on hand during executions. The two-page letter contained few details about the review and did not mention whether there would be increased oversight of ADOC staff who worked executions. One of the agency’s only significant changes was adding more medical personnel to participate in executions. 

The agency has refused to release its full assessment.

As a prison guard working on death row at Holman, Halle Lambert says she was given the chance to join Alabama’s execution team. She declined. “It was not part of my beliefs,” Lambert told Bolts and The Intercept. 

Lambert worked at Holman from September 2022 to November 2023, when she was arrested and fired for bringing in cigarette lighters and a cellphone. Prosecutors have alleged that she planned to sell those items. Lambert has pleaded not guilty, and the case is ongoing. 

During her time at Holman, Lambert learned who was on the execution team because she worked at the prison on execution days. In an interview, she confirmed the identities of team members whose names were provided to Bolts and The Intercept, including Bruce Finch, another officer with a history of arrests and discipline for violating ADOC policy. Finch also participated in the nitrogen execution of Smith in January, according to an eyewitness who asked not to be named out of fear of professional retaliation.

Court records show that Florida police arrested Finch in November 2019 for trespassing outside a concert by heavy metal band Five Finger Death Punch in Pensacola, just over the state line. According to a police report, Finch became “belligerent” with officers who had first given him a warning and ordered him to leave. Police took him to the Escambia County jail, where he grew so agitated that a guard eventually pepper sprayed him. 

Finch then charged at the guard and slapped him on the shoulder. The guard tried to handcuff Finch, but Finch “grabbed his face with his hand covering his nose and mouth,” making it difficult for the guard to breathe, according to the report. The fight escalated so much that another jail guard went into the room and tased Finch. 

Prosecutors charged him with battery on a law enforcement officer, a third-degree felony that carries a maximum sentence of five years in prison and a $5,000 fine. 

Finch pleaded no contest to the charges, and four months after the arrest, a prosecutor agreed to not seek a conviction so long as he met certain criteria—such as undergoing evaluation for substance use, attending anger management, abstaining from alcohol, and paying a $100 fine. By mid-October of 2020, a probation officer said that Finch had completed his pretrial intervention program and sent the case back to prosecutors to dismiss the charges.

Finch, however, did not report the incident to ADOC, which eventually learned of the arrest. In May 2021, the department suspended him without pay for three days for failing to report it and other violations of the agency’s code of conduct.

Bolts and The Intercept found that Finch had been arrested other times as well. 

According to his personnel file, he was arrested for driving under the influence in Texas in 2017, for which he completed a pretrial diversion program. Another DUI, in Atmore in 2018, was dismissed. 

In January 2024, Florida police arrested Finch for drunk driving, writing in a report that he “continuously swerved” on the road and had an empty beer can in the center console of his car when they pulled him over. Records state Finch was “obviously unsteady on his feet” during a field sobriety test and blew .147 and .138 on a Breathalyzer. The legal limit is .08.

In May, he was sentenced to a year probation under the conditions that he undergo substance use evaluation, doesn’t drink alcohol, and submits to random urinalysis tests. His driver’s license was also revoked for six months. 

ADOC paid him more than $104,000 last year, pay stubs show. 

According to Lambert, Finch joined Alabama’s execution team after he was promoted to lieutenant at Holman in November 2022. She said some of the team members are retired prison guards who come back for executions. 

It was previously unknown how Alabama selects its execution team. No one on the state’s squad has ever gone public. The few available details about team members and their experiences have been limited to staff in other states who have spoken to the media. 

In Alabama, staff volunteer to be on the team and the existing group votes on who can join, Lambert said. She said there’s no financial incentive to join, aside from overtime pay. 

Curious about why her colleagues would be a part of executions, Lambert said she asked about their motives. She said one execution team member told her he could feign PTSD and retire early. She said another officer, who was a devout Christian, told her that he was “doing justice.”

The post In Alabama, Prison Guards Accused of Violence and Misconduct Carry Out Secretive Executions appeared first on Bolts.

For the past 25 years, Keith Gavin practiced Islam inside the walls of death row at Holman Correctional Facility in Atmore, Alabama. He was the prison’s imam for a time, leading the row’s Sunni Muslim community in prayer. He’d even adopted an Islamic name, Kamar Kernell Gavin Gabuniquee, meaning “strong prince, strong one, and wonder.” The religion had saved his life, Gavin told me as we sat at a plastic folding table in the prison’s visitation room on Thursday morning. Gavin, 64, wore a knit white kufi on his head; a string of pale green and black prayer beads dangled over his khaki prison uniform. 

It was 10 a.m., and in eight hours, Alabama planned to execute Gavin by lethal injection. He’d filed a handwritten appeal with the U.S. Supreme Court the previous day and was waiting to hear whether it would step in and stop it. I knew that the odds weren’t in his favor. The court was historically hostile to death row prisoners and there was only a very small chance it would let him live, but it wasn’t unheard of—the justices had just stopped an execution in Texas at the eleventh-hour the night before. 

While we waited, we talked about another matter: whether Gavin would get to eat his final meal, a decision that was up to the prison’s warden, Terry Raybon. Gavin had requested halal food, lamb specifically, but Raybon was refusing to let anyone get it for him and it didn’t sound like he was going to change his mind. Even if chances of a stay were slim, they still seemed higher than Gavin getting a piece of lamb.

It was the latest disagreement between the Alabama Department of Corrections (ADOC) and Gavin over his final wishes, all of which arose from his Islamic faith. Last month, Gavin sued the state to ensure that officials did not perform an autopsy on him because doing so would be sacrilegious. The lawsuit came after a breakdown in “meaningful discussion” with state officials, according to a court filing. Alabama eventually relented and allowed Gavin to forgo an autopsy under the condition that he find a mortuary to take his body by 7:30 p.m. after his execution. His supporters raised $4,000 to pay for the pickup and the transport of his body back to his hometown of Chicago for an Islamic burial.

In the days leading up to his execution, Gavin also made requests about what he wanted to eat, the garments he would wear, and his final words before he died. He’d planned to wear his kufi while his imam of 15 years, Aswan Abdul-Adarr, prayed with him in the execution chamber, a proposal he said Raybon had approved, per the state’s execution protocol. 

It’s not uncommon for death row prisoners to make final requests that stretch the bounds of what’s usually permitted on death row. Last year, James Barber led a march to “When the Saints Go Marching In” before he was led off to Alabama’s execution chamber. The prison also allowed his family to bring in a guitar, on which they played “Amazing Grace” at the request of a correctional officer. 

But ADOC officials have been less receptive to the requests of Muslim prisoners facing execution. Though less than one percent of the state identifies as Muslim, a much larger population on death row—around 20 people, or 12 percent—identify as Sunni Muslim. When Domineque Ray asked that his imam be allowed to pray with him in the execution chamber in 2019, ADOC refused, citing security concerns. The decision was criticized by a federal appeals court and three U.S. Supreme Court justices. In a dissent, Elena Kagan wrote that she found the decision “profoundly wrong.”

In the visitation room, Gavin explained that Raybon, the warden, had instructed him earlier in the week to select his final meal, initially saying he could choose whatever he wanted as long as it was under $25. Gavin’s request for halal lamb was an attempt to abide by Islamic teachings that say meat should be slaughtered in the jugular vein, a method that is supposed to result in a quicker and kinder death. Gavin had been unable to eat halal food on death row. (Muslim prisoners had tried unsuccessfully to convince ADOC to start serving halal options, a campaign made all the more difficult by Raybon, who had said that he didn’t know what halal food was, said Gavin. ADOC did not reply to a request for comment about the statement.) 

“I’m a Muslim, I’m supposed to be eating halal food,” Gavin said. “There’s nothing else to eat but junk food. If I had a choice, I’d eat halal food. But I have to eat to survive.” Having a halal meal in the hours before his death would be “truly a blessing,” he said.

The problem with Gavin’s request came when Raybon decreed that if he wanted an outside meal, it had to come from one of the handful of restaurants in the small city of Atmore—even though none of them serve halal food, let alone lamb. The previous day, Kelly Huggins, Gavin’s lawyer, had devised a plan to get him halal lamb by having Abdul-Adarr pick it up on his way from Mobile, some 50 miles away. When she sent an email to ADOC lawyers with the offer, they were unmoved. 

“I believe the warden has explained to Mr. Gavin what his meal options are today,” wrote Thomas McCarthy, an ADOC lawyer, in an email I reviewed. “Mr. Gavin can select from those options or select something from the facility menu, which is what he has been eating. His visitors are also able to provide him with any snacks and beverages available in the facility vending machines.”

When Huggins asked whether any halal option would be available, she got no answer. 

As a last effort on Thursday, the prison’s chaplain asked Raybon whether he could drive to Mobile to pick it up. As Huggins and I visited with Gavin, the chaplain told us that the warden had shot down the plan. 

Soon, Raybon was in the visitation room, wearing a striped crimson University of Alabama polo and his gold warden badge. He dismissed Huggins’ pleas and told us that the halal meal violated protocol, leaving without providing explanation. ADOC’s execution protocol states that visitors can’t bring in food, but mentions no requirement that final meals come from Atmore. I sent questions about the policy to ADOC on Thursday but didn’t receive an answer.

Like the rest of his meals on death row, Gavin’s final meal consisted of junk food: a pint of butter pecan ice cream bought with the remaining money on his commissary account, and a can of Mountain Dew and bag of peanut M&M’s from the visitation room vending machine. 

Gavin seemed perturbed but unsurprised. More than anything, ADOC’s resistance to such a seemingly simple request had created new questions about what it would do later. Would he get to wear his kufi in the execution chamber? Pray with his imam? Would ADOC hand off his body untouched?

Gavin was sentenced to death in 1999 by a jury vote of 10-2 for the 1998 murder of William Clayton Jr., a driver for Corporate Express Delivery Systems. Gavin maintained that he was innocent of the crime, alleging that his cousin was responsible for the killing. 

On appeal, his lawyers questioned the reliability of his sentence for a list of other reasons. Among them, they argued that the jury should’ve had to unanimously agree to sentence Gavin to death. Alabama and Florida are the only two states that allow juries to send someone to death row even when all jurors don’t agree. Approximately six out of every ten prisoners on death row in Alabama were sentenced to death by a split jury, according to a 2023 report by the NAACP Legal Defense and Educational Fund. Efforts to stop the practice have been unsuccessful; a 2023 bill banning non-unanimous death sentences in Alabama never made it out of committee. 

Gavin’s attorneys have also argued that the performance of his court-appointed trial lawyers fell below constitutional standards. His current legal team found that one of his lawyers admitted to being “heavily sedated” due to a broken foot as Gavin’s trial approached. They also say his trial lawyers put together a meager case to convince jurors to spare Gavin’s life when it came time for them to decide whether to sentence him to life without the possibility of parole or death. At the time, his lawyers called just two people to testify: his mother, who they admitted they had not adequately prepared; and a minister who had counseled Gavin in jail.

Gavin’s appellate lawyers later dug up information that they argued could have helped his case. They found that he grew up in poverty and surrounded by violence in Chicago housing projects. He took on the role of caregiver for his 11 siblings and committed crimes to earn money for his family. He was beaten by his father throughout his childhood. At 17, a gang attack sent Gavin to the hospital. By the time he was 21, he shot dead the leader of the gang that attacked him and spent a total of 17 years in an Illinois prison, where he was stabbed by gang members, according to legal documents. 

A federal district court in 2020 ruled that Gavin’s representation at trial was so poor that it violated his right to counsel. “Counsel were totally unprepared,” the judge wrote in a decision that was later reversed by the 11th U.S. Circuit Court of Appeals. 

After the state set Gavin’s execution date in April, his lawyers filed motions trying to stop the execution. When those were rejected, Gavin opted to represent himself, filing his own motions in a final effort to save his life.

On Thursday afternoon, around 3 p.m., Gavin received a petition filed by Alabama Attorney General Steve Marshall with the U.S. Supreme Court asking the justices to let the execution proceed, a response to his appeal for a stay the previous day. With just an hour and a half until he’d be taken away by corrections officers, he looked down at the blank legal pad of paper in front of him. There would be no time for him to file a last rebuttal. “Don’t despair,” Gavin had said throughout the day, and now it was Huggins’ turn to echo the refrain back to him.

Gavin was resolute. “I’m not afraid to die,” he said. 

Once it became clear that the execution would happen, Gavin’s legal team waiting with him inside the prison, which by now had grown to three, asked if he was ready to discuss an unpleasant topic: how the executioners would set the IV lines that would deliver the lethal drugs.

Gavin shuddered, clutching the insides of his arms close to his body, as if to protect his veins from hearing about the stabbing they’d soon endure. He said he’d hated needles ever since he saw people shooting up drugs as a kid in Chicago. 

As if to change the subject, Gavin began writing another letter to his sister, Adriane, and stuffed it into the folder that his lawyers were to send to her in Chicago. 

When the clock struck 4:30 p.m., corrections officers gathered in the hallway that wrapped around the visitation room on all sides. They had changed from the blue polo shirts they wore earlier in the day into formal uniforms of light blue long sleeve button downs and navy pants. One of the officers came in and told Gavin that it was time to go. 

The next time I saw him, Gavin was lying strapped to a gurney inside the execution chamber. His body was bound in a white blanket; his arms outstretched next to him, with IV lines sticking out below both of his elbows. His index fingers were lifted, an Islamic gesture meaning Allah is the only god. Gavin’s eyes were locked onto his imam, Abdul-Adarr, who stood to his left, and his lips were moving, his speech muted by the glass window separating the chamber and witness room. He was no longer wearing his kufi. 

Raybon, the warden, who had changed into a suit, read the execution warrant and turned over the microphone for Gavin for his final statement. “I love my family,” he said, followed by “La Ilaha Illallah Muhammadur Rasulullah,” an Arabic phrase meaning “there is no God but Allah and Muhammad is the messenger of God.”

An officer motioned for Adbul-Adarr to step forward. As they prayed together, Gavin’s lips started moving more slowly until they stopped moving altogether. Eventually, Abdul-Adarr stepped back.

Myself, two of Gavin’s lawyers and media witnesses sat under the glow of a fluorescent pink light watching Gavin die as feedback droned from the speaker above us. Once it appeared that he was no longer breathing, a corrections officer closed the hospital curtain that covered the window into the chamber. He was pronounced dead at 6:32 pm. 

Afterwards, ADOC issued a press release stating that Gavin refused a final meal and made no special requests. 

On Sunday, I spoke with Abdul-Adarr, the imam, by telephone. He told me that after Gavin was taken away by corrections officers, and out of contact with his lawyers inside the impenetrable walls of the execution chamber, ADOC had reneged on its agreement to allow Gavin to die in line with Islamic tradition. The breakdown, which had begun with the meal earlier that day, had spiraled into Gavin’s final moments.

Abdul-Adarr told me that Raybon had personally guaranteed him that Gavin could wear his kufi, a cap many Muslim men wear as an identifier of their religious beliefs, inside the execution chamber. But when Abdul-Adarr finished praying with Gavin in his cell before he was taken to the chamber, a corrections officer made Gavin take it off. 

Abdul-Adarr said the warden had also agreed in writing to let him recite a series of four traditional Muslim prayers with Gavin before pushing the lethal drugs into Gavin’s veins, and that the execution team captain had confirmed the arrangement once they got to the death chamber—but that plan broke down, too.

According to Abdul-Adarr, they were just halfway through the first prayer, the opening chapter of the Quran, when Gavin abruptly jumped ahead to the final statement Muslims are supposed to say right before death: “La Ilaha Illallah Muhammadur Rasulullah.” Abdul-Adarr said he tried to encourage Gavin to keep going but it became clear that would not be possible; shortly after, Gavin’s head, which was upright, fell backwards onto the gurney. ADOC, he said, had already started administering the sedative, rendering Gavin unable to speak. 

“He wasn’t responding,” recounted Abdul-Adarr. “I initially thought it was because of the gravity of the final moments so I just kept going to finish the prayer, but then I realized they had started the lethal injection process while I was still standing right there.”

ADOC did honor its agreement to Gavin after he died. It did not perform an autopsy on Gavin’s body and the agency handed it off to an Islamic mortuary without any issues. Once there, Abdul-Adarr washed it three times, as is required in Islamic tradition, and prepared it for the flight to Chicago. He was buried there on Tuesday. 

Abdul-Adarr said he planned to file a complaint with ADOC over its treatment of Gavin before and during the execution.

He’d been reflecting on whether he should have said something about ADOC deviating from its plan while he was in the chamber but doubted officials would have done anything differently. “It was very disrespectful,” he said. “You didn’t give him his last meal. You took his kufi. But you said we would have plenty of time to pray. They didn’t follow their own procedure.”

The post Before Executing a Muslim Man, Alabama Denied Many of His Final Religious Requests appeared first on Bolts.

The new measure passed by Republicans and signed into law by Alabama Republican Governor Kay Ivey last week makes it illegal for paid organizers to help others vote by mail, threatening the work of grassroots and national organizations who help voters register and cast their ballots. It includes a bevy of draconian punishments including lengthy jail sentences if paid organizers help others fill out or return their absentee ballots.

A lawsuit to block the bill is likely in the coming weeks.

“There’s definitely gonna be legal action,” Anneshia Hardy, the executive director of Alabama Values, a progressive advocacy organization, told Bolts. “That was already in discussion.”

A number of other leading civil rights groups who work in the state were tight-lipped about what their legal plans are, but they have been gearing up for this specific fight for some time. Last year, a nearly identical bill passed the Alabama House, but died in the senate. Kathy Jones, the head of Alabama League of Women Voters, told Bolts at the time that if the bill had passed then, “we would have sued.”

The law makes it even harder to vote by mail in one of the states with the most restrictive voting laws in the country, and threatens paid organizers with jail time if they violate its somewhat-vague provisions. Civil rights groups believe the new law is unconstitutional, but they’re even more worried about the fear the law will create for grassroots organizations’ efforts than the enforcement itself.

Hardy said she’d been talking to multiple groups who do voter education and outreach in the state who were alarmed that their normal work helping Black voters vote could now be illegal under the new law. And she said she’d been in touch with allied groups in Florida, which passed a similar law two years ago, about how they navigated that situation. 

“Some of the organizations stop the effort [to help people vote], because of the ambiguity and also, quite frankly, not wanting to take that risk. It makes a hostile climate for groups who are just trying to ensure that people have access to voting,” she said.

The new law bans anyone besides immediate family members and cohabitants from turning in anyone else’s completed absentee ballot applications, with the exception for people with disabilities or who can’t read or write, in an attempt to root out voter fraud by targeting what Republicans derisively call “ballot harvesting.”

Anyone who knowingly pays someone else to request, collect, or deliver absentee ballots could face a Class B felony charge—the same felony class as first-degree manslaughter in Alabama—which carries a prison sentence of up to 20 years. Anyone who is paid to request, collect, complete, prefill, obtain or deliver a voter’s absentee ballot faces a class C felony—the same felony class as looting, third-degree robbery and stalking—punishable by up to ten years in prison.

This new law comes amidst a renewed war from Alabama Republicans to restrict voting access in the state and strengthen their vice-like grip on political power at the expense of the state’s sizeable African American population. 

Last year, the U.S. Supreme Court ruled that the state’s Republican legislators had violated the Voting Rights Act with an illegal gerrymander of Alabama’s congressional district lines, and ordered them to draw a second district where Black voters would have a say in who represents them. Even that didn’t stop those lawmakers, who proceeded to try to ignore the Supreme Court’s ruling until another court ordered them to reverse course.

Even before this new law passed, Alabama had some of the most onerous voting systems in the country. It’s one of only four states that allows no opportunities for people to vote early in-person, along with Delaware, Mississippi and New Hampshire. It also is one of just 20 states still requiring people to have a specific reason for voting absentee by mail.

And there have been very few proven cases of voter fraud in Alabama. Even the conservative Heritage Foundation, a major proponent of anti-voting fraud legislation, has identified just 20 cases of voting fraud in Alabama since 2000. The only person charged with voting fraud in the last five years is former Republican state Representative David Cole.

“This is a bill that is proposing incarceration and criminal penalties for a problem that doesn’t exist,” ACLU Alabama staff attorney Laurel Hattix said during testimony against the bill last month.

But that hasn’t stopped Alabama Republicans from crying fraud.

When Ivey signed the bill into law last Wednesday, she declared “Under my watch, there will be no funny business in Alabama elections.”

The recently passed law was long a passion project for Alabama Secretary of State Wes Allen, who introduced a similar bill in 2022, when he was still in the state legislature. 

Allen, also a Republican, said in a statement after Ivey signed the bill into law that its passage “signals to ballot harvesters that Alabama votes are not for sale.”

But during his tenure as secretary of state, Allen has actually eroded safeguards against voter fraud. His first official act in office was to pull Alabama out of the Electronic Registration Information Center (ERIC), a bipartisan, multi-state information-sharing effort that helps states identify voters who are also registered in other states in order to help prevent voting fraud. 

Allen was one of a number of Republican secretaries of state to attack, then quit, the organization after it became a target of false right-wing conspiracy theories. Allen has now attempted to set up a parallel version of ERIC, partnering with a handful of other red states in an effort that experts say lacks the basic information necessary to be accurate and effective.

Ronald James, an Alabama political consultant who until recently was the state organizer for Black Voters Matter, said that the new law will “scare a lot of people” and be “devastating” to grassroots groups like his former organization that work to help Black voters cast absentee ballots—especially rural elderly voters and those with limited literacy.

James said he’d worked with grassroots organizations in recent years whose normal activities are now considered felonies, like giving gas money to volunteers to drive others to vote, “or paying volunteers who are dedicated to making sure that people in senior citizen homes and elderly in their churches and in the neighborhood and community have a chance to cast their ballot.”

Now, if those volunteers violate the new law, they and the organization’s leaders alike could be facing jail time.

“There’s going to be a lot of people—a lot of people who just are not able to vote,” he said. “It’s catastrophic to the political scope of how we are active in communities, particularly in Black communities.”

The post Alabama Civil Rights Groups Scramble to Fight Back Against New Voting Law appeared first on Bolts.

“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would dramatically narrow the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching.

1. What if private plaintiffs can no longer sue?

What is the threat to the VRA?

For decades, ordinary citizens and voting-rights organizations have brought lawsuits alleging VRA violations. These lawsuits, and the mountain of legal work and research that goes into them, have been critical to getting courts to strike down discriminatory legislation and create districts that allow communities of color to be represented by candidates of their choice.

In what’s undoubtedly the biggest threat facing the VRA, federal courts might invalidate that entire approach. Conservatives have made the case that only the U.S. Attorney General has the power to sue over violations of Section 2 of the VRA, and they landed a startling ruling by a district court judge last year. If the ruling stands, it would ban private parties from bringing these lawsuits, massively shrinking enforcement; when the Department of Justice is controlled by politicians hostile to civil rights, it may eliminate these VRA lawsuits altogether. 

What are the cases to watch?

Keep an eye on Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the challenge to Arkansas’s state legislative districts. 

After Arkansas Republicans drew new legislative maps in 2021, the state NAACP sued in federal court, arguing that Black Arkansans were underrepresented, and that this violated Section 2 of the VRA. But the district court judge who heard the case, Trump-appointee Lee Rudofsky, questioned whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue over Section 2 allegations. But Justices Neil Gorsuch and Clarence Thomas encouraged that question to be revisited in a 2021 concurrence, stating that courts have “assumed” that this is appropriate without ever deciding it. Walking into that breach, with an explicit appeal to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell finding: “Only the Attorney General of the United States can bring a case like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the most conservative appellate courts in the country, affirmed that ruling in a decision authored by Eighth Circuit Judge David Stras.

If the ruling holds—the NAACP has asked the full Eighth Circuit to reconsider the decision, and an appeal to the U.S. Supreme Court is likely regardless—it would be sure to sideline a great many VRA cases. Besides the Arkansas litigation, high-profile cases last year that led to new maps in Alabama and Louisiana were brought by private plaintiffs, and would have been dismissed outright under Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts. In December, the Republican attorneys general of twelve states (including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and Texas’ Ken Paxton, all prominent far-right figures) signed on to an amicus brief asking the Fifth Circuit to take on the Eighth Circuit’s interpretation and rule against voting rights groups in the ongoing litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe successfully challenged legislative districts in 2023 for diminishing the voting power of Native voters. State officials have agreed to use a replacement map for the 2024 election but have appealed the use of the map beyond that point. And in pushing back against the ruling last month, North Dakota’s Republican Secretary of State, Michael Howe, has already invoked the same argument that private parties cannot bring suits under Section 2 of the VRA, an argument that would outright silence the legal power of the two tribes that challenged the state.

2. The conservative case that times have changed

What is the threat to the VRA?

When the Supreme Court in 2013 struck down Section 5 of the VRA, which required certain jurisdictions to seek D.O.J. approval before changing their voting procedures, Chief Justice John Roberts wrote that “things have changed dramatically” in the South since 1965.

Some conservatives want federal courts to go even further, and dramatically re-interpret Section 2 on that same basis. And Justice Brett Kavanaugh last year gave them a reason to keep trying, doing so in the very same Alabama case in which he sided with the liberal justices to otherwise save the VRA. He noted that Justice Clarence Thomas’s dissenting opinion in the case argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But Kavanaugh wrote that “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” The time may now be coming that’ll test Kavanaugh: Despite the massive barriers that people of color continue to face in exercising the franchise, multiple cases are working their way through the legal system in which defendants are renewing the argument that “things have changed” too much to keep enforcing Section 2.

What are the cases to watch?

Keep an eye on Milligan v. Allen, the continued litigation over Alabama’s congressional map, and Robinson v. Landry, the challenge to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map that a federal court drew in late 2023 to create an additional district likely to elect a Black candidate. State officials have objected to the new map, and in so doing they’ve picked up on Kavanaugh’s argument: Alabama is asking courts to decide whether “the authority to conduct race-based redistricting extends to the present day,” regardless of its original justification. 

Louisiana officials have made a similar claim in their effort to fight court rulings that have struck down the state’s congressional maps as violating the VRA. (Louisiana adopted a new map creating a new majority-Black district this month due to a court-ordered deadline, but the litigation over that order continues.) 

Alabama has called the litigation against its original map “affirmative action in redistricting.” In 2023, the U.S. Supreme Court in 2023 struck down affirmative action in university admissions, and even though that case did not touch on voting rights, GOP officials in several states have weaponized the case to argue that the VRA is no longer applicable to the present.

In July, Louisiana officials filed a brief arguing that the affirmative action decision shows that “statutes requiring race-based classification” will “necessarily become obsolete.” They ask courts to settle “whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the established interpretation of Section 2 as no longer permissible, it would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche for states to double down on discriminatory practices, except now shielded by the argument that the country is too enlightened to allow such practices.

3. Courts may shut the door to sue over statewide elections

What is the threat to the VRA?

Legal challenges often focus on how politicians have drawn districts: Have they respected the VRA in how they’ve separated or combined a state’s communities? But civil rights litigants have also contested the use of “at-large” elections, which are elections that elect the members of a body (say, a city council) throughout the jurisdiction, without the use of districts. Using this “at-large” structure for local races can prevent minority groups from electing a candidate of their choice; in some contexts, lawsuits have successfully forced counties and cities to convert their electoral system to use districts, allowing different communities to be better represented.

A case that’s percolating through the federal court system may decide whether similar lawsuits can ever be brought in the context of statewide elections. If that door is shut, it would put many government bodies whose members are elected at-large—most commonly, public utility commissions, boards of university regents, or boards of education—beyond the reach of VRA litigation.

What is the case to watch?

Keep an eye on Rose v. Raffensperger, the challenge to Georgia’s public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide (“at-large”) elections for the five members of the state’s Public Service Commission, the body that regulates public utilities. They argued that a compact, Black-majority district could be created to elect a member of the Commission; a district court agreed after a trial, and ordered the state legislature to draw districts to that effect. But the state’s decision to appeal dragged out the process, leading to canceled elections. And in November, in a ruling authored by Judge Elizabeth Branch, another Trump appointee, a three-judge panel on the Eleventh Circuit reversed that decision. The panel held that the plaintiffs had not made out a sufficient claim under the VRA because their proposed remedy would “upset Georgia’s policy interests,” specifically, its “interest in maintaining its form of government.” In other words, because the Georgia legislature decided to make the Public Service Commission elected statewide, the court was obligated to respect that decision.

The ultimate resolution of this case will shape the viability of a lot of prospective litigation. This is believed to be the first case challenging the use of a statewide electoral system, so the district court’s decision had opened the door to similar challenges popping up elsewhere. If lawsuits like this can be brought against the use of statewide elections to pick members of state boards, voters may be able to target other elected state institutions whose “at large” membership is largely or all-white—Alabama’s Public Service Commission and Texas’s Railroad Commission come to mind—with the demand that they replace statewide elections with a system that providing communities of color a better opportunity to elect a member. 

If these challenges can’t be brought, however, communities of color may keep being systematically shut out with impunity.

4. The use of “coalition districts” is under threat

What is the threat to the VRA?

The VRA may compel states or localities to create districts that give voters in a racial group the opportunity to elect a candidate of their choice. In deciding whether such a district is required, federal courts assess whether a specific group’s size and voting behavior warrant such an opportunity district. But what happens when no single racial group is large enough to reach that threshold, but several do so when combined? 

In that context, some federal courts have required the creation of “coalition” districts, a practice that has boosted representation for people of color. For instance, they may consider Black and Latinx residents together to force the creation of a district in which voters would have a better shot at electing a nonwhite candidate. A case out of Texas is now threatening this practice, however. 

What are the cases to watch?

Keep an eye on Petteway v. Galveston County, the challenge to county commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new set of districts for their county commission; their map eliminated the county’s only “majority-minority” district—a coalition district in which Black and Latino voters make up a majority. Backed by conservative legal groups, the county argued during a trial last year that the VRA should not be used to protect multiracial coalitions; but a federal court sided with plaintiffs in restoring the district. Judge Jeffrey Brown, who was nominated by Trump, even wrote that the “circumstances and effect of the enacted plan were mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until it could decide the county’s appeal, and the U.S. Supreme Court blessed that move in December over the objections of liberal justices. The appeals court made clear that it wanted to revisit its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the redistricting norms, if they choose to weigh in for the first time on the permissibility of coalition districts. If coalition districts are no longer used as a remedy to racial discrimination, it may further cut the number of districts drawn to elect people of color; in racially diverse regions like Texas, it would make it harder to challenge maps that are resulting in a disproportionate number of white officials.

Some of these questions are playing out in Georgia. A federal court last year struck down the state’s congressional map, ordering an additional Black opportunity district. The legislature responded by carving up an existing coalition district and turning it into a Black majority district. The challengers have argued, unsuccessfully so far, that this is impermissible: that fixing a VRA violation cannot involve eliminating an existing coalition district.

The post Your Guide to Four Emerging Threats to the Voting Rights Act appeared first on Bolts.

In late July, Treina Kinder traveled about 200 miles from her home in Huntsville, Alabama, to Montgomery to ask the state’s parole board to release her husband, Richard Kinder. He was 17 when he was convicted of capital murder and sentenced to spend his life in prison for his role in the killing of Birmingham teenager Kathy Bedsole. By the time of his parole hearing this summer, Richard had been incarcerated for nearly 40 years. 

Walking into the hearing in Montgomery, Treina was optimistic. Accompanying Richard’s application was a long list of achievements like college degrees and 40 certificates, including for the completion of drug and alcohol rehabilitation programs. He’d lived in a faith based honors dorm since 2005 and had only one minor disciplinary infraction during his incarceration at St. Clair Correctional Facility, which has at times been the most violent prison in Alabama, a state that in recent years has had one of the country’s highest prison homicide rates. Richard’s furniture and refinishing instructor at the prison supported his release, writing in an affidavit, “I am 1000% convinced that if Richard Kinder were released, he will not violate the law and will become a productive member of our society.”

Importantly, Richard’s application also included a letter from the former lawyer for his co-defendant, David Duren, who said Duren had admitted the plan to kill Bedsole was his alone and that Richard had no idea he was going to shoot her (Duren received the death penalty and was executed in 2000). 

Richard was initially sentenced to life without the possibility of parole, but in 2017, after a pair of U.S. Supreme Court decisions ruled that imposing mandatory sentences of life without parole on minors was unconstitutional, an Alabama judge reduced Richard’s sentence to life with the possibility of parole. The judge wrote there was “uncontradicted evidence” of Richard’s rehabilitation. Even so, the board denied Richard parole in July 2018, his first hearing after he became eligible.

But Treina hoped this summer would be different. “I thought … that we had a really good chance,” Treina told me of the latest hearing. “There’s nothing else he could have done. I mean nothing.” 

At the hearing, which took place at the parole board’s office, each person was given two minutes to speak in support or opposition of Richard’s release. Treina spoke about Richard’s accomplishments and his plan to live with her and find work in Huntsville. Richard’s brother and one of his lawyers also spoke in favor of his parole application. Bedsole’s sister and father opposed his release, as did a representative from Attorney General Steve Marshall’s office. 

Unlike other states, prisoners aren’t allowed to attend their parole hearings, so Richard sent a letter for board members to review ahead of time. “I realize the severity and seriousness of my offenses, and I understand that granting parole to me may be a difficult decision for you,” he wrote. “My hope is that my record will adequately reflect to you the effort I have put into my personal growth and change I have made in my life during the 40 years of my incarceration.”

His lawyer, Richard Jaffe, said the board conferenced for just “a couple minutes” before denying Richard Kinder parole and telling him he’d have to wait five more years to petition them again. A sheet explaining the reasons for denial shows the board decided against his freedom because of the severity of his offense and opposition from Bedsole’s family and the attorney general’s office.  

Treina says she broke down crying in the parking lot. “I was devastated,” she said. “I really thought he was going to get out.”

Jaffe said every piece of evidence his team gave the board showed that Richard had been rehabilitated and reformed, and that there was no plausible reason for the denial. “To say it was disheartening would not come close to describing this injustice,” Jaffe wrote in an email.

Since Richard’s first hearing in 2018, it has become even more difficult for people to get out on parole in Alabama, a privilege reserved for prisoners who meet a certain set of guidelines, such as showing they’re unlikely to commit another crime. State parole data shows that people who meet that criteria have been denied release at much higher rates over the past five years, blocking an important mechanism for release from the state’s dangerous and overcrowded prisons. Alabama’s parole board, which years ago released more than half of people who applied, approved just 10 percent of applicants last year. Richard was one of 245 people the parole board denied release from prison in July; the board granted freedom to just 11 people that month, a parole grant rate of four percent. 

In many cases, the board points to opposition from the attorney general’s office and a victim’s rights group to support its decision to deny release. Legislative efforts to add oversight and stricter guidelines for the board to follow have failed, even as the board appears to flout constitutional requirements by discriminating against Black applicants.  

State Representative Chris England, a Democrat who represents Tuscaloosa and who has introduced bills to reform the board in the past two legislative sessions, told me the board is not following its own guidelines. “What you see, in my opinion, is an out-of-control board,” England said.

Right around the time Richard Kinder first became eligible for release, politics and policies around Alabama’s parole board started to change.

Four days before Richard’s first parole hearing in 2018, a man on parole killed three people. As criticism grew over the board’s decision to grant him parole, Lyn Head, who was chair from 2016 to 2019, says Governor Kay Ivey pressured board members to stop releasing people. Head recounted a meeting in October 2018 led by Ivey and Marshall, who are both Republicans, that set the tone for how the board was expected to vote for people convicted of violent crimes—a category that’s broadly defined in Alabama law to include drug trafficking and third degree burglary and covers approximately 80 percent of people in Alabama prisons. 

According to Head, Ivey was puzzled as to why board members would vote to release people who had committed such crimes. “Why would you even consider letting someone convicted of a violent crime go free?” Ivey asked, according to Head.

Head says she explained to the governor that the parole board is required by the legislature to use a risk assessment tool that helps predict whether someone is likely to reoffend, and that people convicted of violent crimes were often considered low risk based on that available data. According to Head, Ivey “banged her hand on the table and said, ‘But don’t you think these people need to pay a price?’”

Head says she started changing the way she voted on cases because of pressure from Ivey and Marshall. “There were cases where I did not vote to parole even though I knew I needed to because I was afraid of losing my job,” she told me, explaining that she had two children in school at the time. 

A spokesperson for the governor’s office did not return requests for comment on Head’s account. Amanda Priest, a spokesperson for Marshall, declined to comment. 

The legislature passed a bill the next year that gave Ivey even more control over the board. Previously, the governor selected board members from a list provided by a five-person nominating commission that was chaired by the chief justice of the state supreme court; the commission also included the presiding judge of the court of criminal appeals, the house speaker, senate president and lieutenant governor. The 2019 law eliminated the judges from that commission and narrowed it to just the three other leaders of the state legislature. It also gave Ivey power to directly appoint the parole board’s director and added the requirement that at least one member have at least 10 years of experience in law enforcement and “the investigation of violent crimes or the apprehension, arrest, or supervision of the perpetrators thereof.” 

Head resigned in the fall of 2019 and Ivey replaced her with Leigh Gwathney, who was a senior prosecutor in charge of violent crimes and assistant attorney general under Marshall in the AG’s office. 

After Gwathney’s appointment, parole releases began to plummet, from a grant rate of 53 percent in 2018 to 20 percent in 2020. Last year, the grant rate was 10 percent. 

Head attributes the low grant rate partly to Gwathney’s unwillingness to seek training on a risk assessment tool. Under the board’s rules, members are supposed to consider information from a risk assessment as well as an evaluation from a parole officer who looks into people with upcoming hearings. In August, the most recent month with data available, the system found that roughly 80 percent of people met the parole requirements, yet the board granted parole to just five percent of applicants that month. 

The board declined to comment on a list of questions about the low grant rates. 

Kim Davidson, who served on the board from March to June, told me in a text message that those guidelines “have no teeth” because the board doesn’t have to follow them. She recommended that officials make the guidelines for release presumptive rather than advisory, and introduce an appeals process. Davidson, a lawyer, was appointed to fill in for board member Dwayne Spurlock, who retired before the end of his term. During her short tenure, she voted in favor of parole more often than her fellow board members. 

Ivey did not appoint Davidson to another term, however, a snub Davidson blames on Marshall, who she says did not want people to be released on parole. “I could have played the long game and voted more in line with denials and odd set dates,” wrote Davidson. “But, that just isn’t me.” Davidson claimed the attorney general’s influence looms large over the board because of Gwathney, whom she found to mistakenly apply the law at times. “The only thing he needs to do is keep Leigh on the Board,” Davidson said. 

Head says the board’s refusal to release people who have worked to change themselves does not improve public safety. She’d like to see more focus on re-entry programs that support people leaving prison and have been proven to reduce recidivism rates. “They want to show or demonstrate to the public that we’re keeping you safe because we’re keeping these people locked up better than anybody has before us,” she told me. “But the problem is, they’re lying to the public. Because if they would explain to the public, this is how you reduce recidivism.” 

After I interviewed Head, she reviewed an article I wrote in The Appeal in 2019 chronicling Richard’s case after his first parole hearing. She said she did not remember his case and was puzzled as to why she voted against his parole. “Don’t understand and surprised,” she wrote in a text message. Asked whether she regretted voting that way, she replied that she couldn’t say without looking at his file. “But if there is nothing in the file that indicates his record is other than all that you found, yes,” she said. 

When researchers from the ACLU of Alabama observed around 260 parole hearings this summer, they found that Gwathney granted parole less frequently than the other two parole board members. She also maintained an allegiance to her old employer, denying parole in every case that the attorney general’s office opposed, according to their final report.

“I think that any parole hearing that the attorney general’s office opposes, Gwathney should recuse herself. She has a conflict of interest,” said Alison Mollman, senior legal counsel for the ACLU of Alabama. “But that has not been her practice. She continues to sit and vote with her former employer in all these cases.”

The researchers discovered another troubling finding. Since Ivey took over control of the board, Black people were far less likely to be granted parole than white applicants. In 2019, Black and white prisoners were granted parole at similar rates, with 34 percent of Black people granted parole compared to 36 percent of white applicants. But that disparity grew by 2020, with 16 percent of Black applicants receiving parole compared to 29 percent of white people, according to their report. 

In the hearings observed by the ACLU of Alabama this summer, white people were granted parole 11.8 percent of the time. Black people had a grant rate of 4.7 percent despite being similarly situated. 

Black people incarcerated in Alabama’s prisons also receive sentences that are on average nine years longer than for white people, and spend significantly longer behind bars before receiving parole. A recent analysis of state court data by AL.com found that nearly half of Black men granted parole over a two month period this year had already served at least 75 percent of their court-ordered sentence. White people granted parole during that same period had served, on average, less than a quarter of their sentence. 

Shrinking parole has also become a barrier to alleviating overcrowding inside a prison system so dangerous that the U.S. Department of Justice has sued the state and the Alabama Department of Corrections after an investigation showed excessive force by correctional officers and “serious risk of death, physical violence, and sexual abuse at the hands of other prisoners.” There were roughly 19,800 people in the state’s men’s prisons at the end of September yet the facilities are designed to hold just around 11,700. 

“I think that when we see how violence has just skyrocketed in Alabama’s prisons, it’s directly related to the lack of hope that people have,” Mollman told me.

Despite these problems, there’s been little movement from the legislature and Ivey’s office to make it easier for people to get out on parole. For the past two years, England, the Tuscaloosa lawmaker, has introduced legislation that would create a panel to oversee the board and create guidelines for members to follow. It would also require the board to issue a written decision when deviating from those guidelines and create an appeals process for prisoners. “They don’t have to follow guidelines and it’s completely discretionary,” England said. “So when you don’t have any oversight, you get systems that are clearly abusing the discretion that they have.”

England’s bill failed to gain traction among other legislators, some of whom deny there are any problems with the parole board. “I’ve spent 25 years with Pardons and Paroles and I just want to say that it’s a hoax that the parole board is not releasing folks,” Representative Jerry Starnes, a Republican who represents Prattville, said in a House Judiciary Committee hearing on the bill earlier this year, according to the Alabama Political Reporter. 

As chances for parole shrink in Alabama, people inside its prisons are confused about what they can do to earn their freedom. 

In a telephone call from St. Clair Correctional Facility, where Richard is incarcerated, he talked about the board’s focus on the crime he was a part of 40 years ago. “Look at the reasons why they turned me down for parole and they’re reasons that I can do nothing about. Capital murder is always going to be a severe offense, I can’t change that,” he said.

He’d followed the parole board since his last hearing and knew it had become much harder to get out, he said. Going into his hearing this summer, Richard said he was hopeful but not optimistic about the board voting in favor of him. “They would have to be willing to really look at our record, you know, what we’ve done in here, and say, ‘Hey, this warrants a chance.’”

Still, he expressed remorse for his role in Bedsole’s death. “I mean, how much time is enough?” he asked. “I don’t know… When I look at myself, personally, I think about a 16-year-old girl that’s lost her life. I don’t know how long she would have lived. You know, she may have lived way older than me. I don’t know how much time is fair for her life. How much time is fair for me to do regardless of who I am in here and how I changed or anything?”

The post In Alabama, an “Out of Control Board” Cuts Chances for Parole appeared first on Bolts.

Caution: This story describes executions and includes an image from an autopsy. 

Under Alabama’s execution protocols, the warden of the Holman Correctional Facility, which houses death row in the state, is supposed to tell condemned prisoners when their execution has been scheduled “prior to any announcement by news media.” But in late May, James Edward Barber found out about his impending execution when the news broke on TV.

Barber’s lethal injection, which is scheduled for Thursday, is set to be the first in the state since a series of long and bloody executions led to a moratorium and review of the state’s protocols for putting people to death. His lawyers, who say Alabama officials didn’t inform him of his execution date until a day after it was announced on the news, argue it showed the state can’t follow its own rules and has done little to fix the problems highlighted by last year’s executions. 

“Defendants simply cannot, or will not, carry out their own [lethal injection protocol],” they wrote in a motion last month attempting to stop his execution.

The Alabama Department of Corrections (ADOC), which conducted the recent review of its own death penalty protocols, says it found “no deficiencies” in its execution methods. But the agency has not released its full assessment. The state has also adopted some new protocols, but those rules are shrouded in secrecy.

As the state prepares to resume executions this week, advocates say the new rules, to the extent the state has disclosed them, also appear to increase the likelihood that prisoners will endure torturous executions. 

“What we’re concerned about is Alabama’s capacity to carry out these executions in a humane and constitutional manner,” said Angie Setzer, a senior attorney for the Equal Justice Initiative, a nonprofit organization that advocates on behalf of death row prisoners. “Given what we’ve seen, I think there’s real reason for the public to not have that confidence [and] to be concerned about what the state is doing.”

Executioners in Alabama have long struggled with inserting IVs to deliver lethal drugs. In 2018, executioners punctured Doyle Lee Hamm with needles for two-and-a-half hours before calling the execution off because they could not access a vein. His attorneys had warned that the state would encounter problems because Hamm’s veins were compromised from cancer. 

Photographs of Hamm taken afterward showed needle wounds all over his body, including six on his groin, which was badly bruised where executioners had attempted to access a central vein. The area leaked blood so heavily during the execution that it soaked through the sterile draping and it had to be changed, according to a legal filing recounting Hamm’s experience.

It took executioners more than three hours to execute Joe Nathan James Jr. last July. By the time the curtain to the death chamber’s witness room opened, he was already on the gurney with his eyes closed and did not move or speak, according to media witnesses. John Hamm, the ADOC Commissioner, told reporters that “nothing out of the ordinary” happened, but a spokesperson for the department said the next day that the delay was due to problems setting the IV line. Doctor Shante Hill, the state pathologist who conducted the official autopsy, reported needle puncture marks in his elbow, wrists, and hands.

Photographs showed what appear to be two horizontal cuts on the inside of James’ elbow. Hill described those marks as “superficial abrasions” but Doctor David Pigott, a professor in the Department of Emergency Medicine at the University of Alabama School of Medicine in Birmingham, who submitted an affidavit on behalf of Barber, said they were more likely evidence of executioners’ departure from traditional IV access strategies and showed an attempt to perform a cutdown procedure on James. The procedure, which is not authorized under Alabama’s protocol, involves cutting deeply into the skin to find a vein and is typically performed by a surgeon during life-threatening emergencies when other attempts to gain IV access have failed, Pigott told Bolts. He said that he agreed with Hill’s assessment but thought that the cuts were so shallow because of the inexperience of the people trying to perform a cutdown.

“They looked like hesitation marks, like somebody was going to cut it and then they decided against it, because there’s clearly cuts there that are very superficial, like barely through the skin,” Pigott said. ADOC has not attributed those marks to another source, such as James’ movements on the gurney, and has maintained that executioners did not perform a cutdown procedure. 

In court, the state has cited the affidavit of Doctor Boris Datnow, a pathologist who was hired by human rights group Reprieve to conduct a private autopsy of James. He determined there was “no evidence that a cutdown procedure was performed or attempted on Mr. James.” Datnow, who said he has performed cutdowns himself in addition to autopsies on people who had undergone the procedure, told Bolts that the marks were merely “simple superficial scratches” and said reports that they were evidence of a cutdown are “absolute rubbish.” But asked about Pigott’s claim that there were hesitation marks, Datnow said he was not familiar with the term. “What mark? I’ve never heard the term hesitation,” he said. Pigott, however, wrote in an email to Bolts that the term is frequently used in forensics and emergency medicine. When asked whether pathologists should know what hesitation marks are, Pigott responded, “I would think so.”

 Two months after James’ execution, Alabama unsuccessfully attempted to execute Alan Eugene Miller. According to Miller, who detailed his execution in legal filings, two men wearing scrubs stuck Miller in his right elbow, then right hand, left elbow, right foot, right inner forearm, and his right and left arm. Miller said his entire body shook when the needle was inserted into his right foot. It “caused sudden and severe pain,” and “It felt like I had been electrocuted in this foot,” he said. At one point, one of the men used the flashlight application on a smartphone in an attempt to find a vein. After none of those attempts worked, the executioners left the room and ADOC staff adjusted the gurney from a horizontal to vertical position, leaving Miller, who was strapped in and weighed 350 pounds, hanging in the air for 20 minutes. 

“No one explained to me why I was being raised into a vertical position or why the men in scrubs had left the room,” said Miller, who felt “nauseous, disoriented, confused, and fearful” as state employees stared at him from the observation room. More than 90 minutes after attempts to set the IV lines began, the execution was canceled. 

Two months later, on Nov. 17, 2022, ADOC failed to execute Kenneth Eugene Smith, again because executioners could not establish IV access. The team spent two hours sticking needles all over his body before resorting to trying to insert a thick needle underneath his collarbone, which also was unsuccessful. In an affidavit, Smith said that the multiple punctures “caused me severe physical pain and emotional trauma.”

Days after Smith’s failed execution, Alabama Governor Kay Ivey ordered a moratorium on executions and a “top-to-bottom” review. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment,” she wrote in a press release at the time. “I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

But unlike other states, which have ordered independent inquiries after executions in which something appeared to have gone wrong, Alabama officials opted for an internal review by corrections officials. Tennessee officials tapped an outside law firm, whose inquiry spanned seven months and 26 witnesses and resulted in a damning 178-page report that showed the state repeatedly failed to follow its own execution protocols, which eventually led to the firing of two top corrections officials. Alabama’s review, by contrast, lasted just over three months, was conducted by the same department responsible for last year’s executions, and the findings have yet to be made public.

“In those states, we saw a real genuine commitment to getting it right to avoiding sort of a spectacle of prolonged suffering and failure,” said Setzer with EJI. “And Alabama really didn’t do anything. There’s no transparency, no record of what was done. No independent third party review, no outside evaluation, no identification of any problems or proposed remedies.”

Former Alabama Governor Robert Bentley, who oversaw eight executions during his tenure from 2011 to 2017, doubts that an investigation ever even took place. “It’s just my belief that they have not done what they should do because it does not take that long to have an investigation on something like that,” Bentley, who is a Republican like Ivey, told Bolts. 

Governor Ivey’s office, Attorney General Steve Marshall, and ADOC officials did not respond to a list of questions from Bolts. The state has denied that team members made errors in the executions that preceded the moratorium and that the protocol review enables it to resume carrying out smooth executions. 

“There were certainly two executions in the fall of 2022, in which the state wasn’t able to gain IV access,” an assistant attorney general said during a court hearing on Monday. “But those two can’t be looked at as excluding all the rest of history, because history shows that that’s an aberration and not the rule.”

Alabama has made several changes to the state’s execution protocols since last year, including a new rule that shifts responsibility to the governor for scheduling executions and setting the “time frame” during which they take place. For Barber, who was sentenced to death for the 2001 murder of Dorothy Epps, Ivey has selected a 30-hour period between 12:00 am on July 20 and 6 am on July 21. Previously, that window was narrower, expiring at midnight on the day for which a death warrant was issued. 

“This change will make it harder for inmates to ‘run out the clock’ with last-minute appeals and requests for stays of execution,” wrote Hamm, the ADOC commissioner, in a one-and-a-half page letter to Ivey explaining the results of his department’s review.

Advocates for death row inmates say the rule change increases the danger that their clients will experience lengthy periods of torture.

The state was forced to stop past executions during which IV team members could not find a vein because of the deadline. “They only stopped in those cases, because they were obeying the law, and they weren’t going to carry out the execution after midnight. Now that back control is completely removed,” said Brian Stull, a senior staff attorney with the ACLU’s Capital Punishment Project.

“Now that that time period is extended, and they don’t have to complete it by midnight, who knows how long a person could be tortured in the state of Alabama before they’re finally executed?” 

Another change involved expanding the state’s “pool of available medical personnel for executions” and obtaining new medical equipment, according to Hamm. As part of the revised protocol, ADOC now requires that IV team members be “currently certified or licensed within the United States.” Yet, the state does not elaborate on what certifications or licenses are mandated. 

In court, Barber’s legal team has uncovered more information about Alabama’s plans for their client. While state officials did not initially disclose the new equipment ADOC is planning on using, lawyers have since learned that it only plans to add more straps to restrain prisoners. But medical professionals say that other equipment, such as an ultrasound machine, is typically used for finding veins in tricky situations. 

“In my experience, if a nurse was unable to set an IV line in a patient after 15 minutes and three needle sticks, that nurse would need to find a better experienced person to set the line, and/or employ enhanced equipment such as ultrasound,” wrote Lisa St. Charles, a surgical nurse who has set more than 1,000 IV lines, in an affidavit.

In June, Terry Raybon, the warden at Holman who oversaw the previous three executions, submitted an affidavit saying that he had participated in interviewing and selecting new members for the IV team “with extensive and current experience setting IV lines.” 

“As part of the interview process, candidates were asked about their relevant experiences, licenses, and certifications,” Raybon wrote, saying that none of the current personnel had participated in James, Miller, or Smith’s executions. The selected team appears to consist of  paramedics, advanced EMTs, and a nurse with a Florida license, according to documents produced by ADOC as part of ongoing litigation. Presented with their licenses and certification in a hearing earlier this month, Lynn Hadaway, a Georgia nurse who has worked on hospital IV teams, testified that none of the documents alone are proof that they are trained in setting an IV line. “Certification does not—and licensure does not equal competency,” she said during the hearing. 

Notably, ADOC has not released the certifications and licenses of the previous IV team members, so it’s unclear whether the current team’s differ. The department did not reply to questions from Bolts about their qualifications.

Barber’s lawyers say they still have reason to question the qualifications of the execution team. They learned the identity of one member because her name was visible under a piece of white paper produced as part of discovery in the case, and found she had been arrested for fraud related incidents. “If she has been arrested for fraud-related instances, it suggests that maybe her credentials are not necessarily what they are or what she represents them to be,” argued Stephen Spector, one of Barber’s lawyers, in an evidentiary hearing on July 5. “And if she has not necessarily exercised judgment because that person has been arrested for fraud-related instances, I don’t think you could necessarily give that person the benefit of the doubt when it comes to carrying out such an important task.” Barber’s team has not revealed the woman’s identity.

To avoid the risks of a painful lethal injection, Barber has requested to be executed by nitrogen hypoxia, or suffocation by nitrogen gas, a method that has never been used in an execution. Prison officials have said they’ve been preparing for executions with nitrogen since the Alabama legislature authorized the method in 2018, but the state has not released any protocols for using it in executions. Last September, a lawyer in Attorney General Steve Marshall’s office said it was “very likely” the state would be able to execute Alan Eugene Miller that month and had even asked Miller to be fitted with a gas mask, but backtracked shortly after, saying the state was not ready. Then in February, Hamm said ADOC was “close” to finishing protocols around using nitrogen in executions, saying they should be completed by the end of this year. 

The state of Alabama has requested to execute Barber with nitrogen should a judge rule that it cannot use lethal injection. However, during an evidentiary hearing earlier this month, a state attorney told a federal district court judge that Alabama was still not ready for executions with nitrogen. The judge ultimately rejected Barber’s request to stop his lethal injection, pointing to the changes in execution protocols since last year. “These intervening actions cut off the emerging pattern of past practices that could have elevated Barber’s claims from purely speculative to actionable,” the judge wrote. 

Barber’s team appealed the decision and on Monday, argued in front of the 11th U.S. Circuit Court of Appeals that appointing a new IV team without releasing more details on their experience provided little reason to think their client’s execution would be different than the previous three. 

“All the people the state chooses to staff the IV team are fungible and the same,” said one of his lawyers. “It’s like picking up a different can of soda off the shelf from a factory that isn’t passing safety inspections. The state used the same standards of quality control and they’re going to get the same product.”

The judges are expected to make their ruling later this week. Barring intervention from the courts or Ivey, who has the authority to grant Barber clemency, Alabama will move forward with the execution at 6 p.m. on Thursday. 

In testimony, Barber has said that because of his faith, he’s not afraid to die. “A little over two decades ago, I was made a promise, and through that promise I have no fear of death,” he said during an evidentiary hearing. “God promised that I would receive eternal life, so death is just a transition for me.”  

In the months since learning of Alabama’s plans to execute him on the news, Barber has kept in close contact with his family. Teresa Krulicki, his cousin, and Denise Kisiel, his niece, told Bolts that they talk about everything ranging from updates on his appeals to step-by-step instructions on how to make his red sauce, which she is planning to make in the week following the execution. Neither of them were able to make the trip to Atmore, where Holman is located, because of a scheduling conflict but said they will be together, watching the news closely on Thursday.

“It’s kind of a numbing feeling right now, the whole week feels really numb to me,” said Kisiel. “Talking to him, obviously he’s at peace with it and he comforts me but it’s very numbing, you almost don’t know how to feel.”

Krulicki added, “We’re so sorry for any pain that has been caused to the Epps family, and we are definitely suffering. You know, maybe not as much as them, I can’t say that. But we are suffering too. You know, two lives have been lost.”

The post Alabama Failed to Carry Out Its Last Two Executions. It’s Trying Again This Week. appeared first on Bolts.

Republicans had been barreling ahead with legislation that would make it a felony in most cases to aid another person in requesting, filling out or returning voting ballots. The bill had sailed through one chamber of the Alabama legislature, and was widely expected to pass the other. But when the Alabama senate convened for its final day of the 2023 legislative session last Tuesday, the controversial bill was not among those included for floor debate.

That news was a welcome surprise to the bill’s opponents, a coalition of voting rights, civil rights and disability rights groups that expected it would pass. And it came in the same week as another unexpected victory for the state’s voting rights community, as the U.S. Supreme Court ruled on Thursday that Alabama’s aggressively gerrymandered congressional map violated the Voting Rights Act. 

“We’re absolutely thrilled over here,” said ACLU of Alabama Policy & Advocacy Director Dillon Nettles.

Voting rights advocates were able to breathe a sigh of relief at these two victories for now, but that doesn’t mean that the fight is over: these groups are already bracing for Republicans to revisit the absentee ballot bill in next year’s legislative session.

“It will come back. I think it’s going to be a big issue next year. I think they’ll push it much earlier next year,” Senate Minority Leader Bobby Singleton, a Democrat, told Bolts.

Republicans’ House Bill 209 would have created draconian punishments for people if they help others fill out or return their absentee ballots, in an attempt to dramatically reduce efforts from get out the vote organizations.

The bill would have made it a class D felony punishable by up to five years in prison and $7,500 in fines for people who distribute, order, request, collect, complete, obtain or deliver an absentee ballot or ballot application on behalf of another person. That’s the same felony category as credit card fraud.

Anyone paid to help fill out an absentee ballot could have faced class C felony charges and a prison sentence as long as 10 years. Those who knowingly pay a third party to take any of these actions on an absentee ballot could have faced a class B felony charge—the same class of felony as first-degree manslaughter in Alabama—and one with prison sentences as long as 20 years. 

“That bill would have made felons out of folks that are just trying to help their friends and neighbors,” said Alabama League of Women Voters President Kathy Jones. “If it had passed, we would have sued.”

Opponents of these proposals argue that these penalties would have a chilling effect on absentee voting by making it harder for people who need assistance to receive, fill out and return their ballots. And they say it would have an outsized impact on Black voters—especially those who live in the poor, rural Black Belt region of the state.

“The highest percent of absentee ballots come out of the Black community, out of the Black Belt counties. We don’t have a lot of jobs in those communities, so those who live in those communities have to drive 40, 50, 60 miles a day. So the absentee ballot is the way that they can vote,” said Singleton. “It could look to be voter suppression based on where the large number of absentees come from—out of the Black community.”

The bill would have exempted family members and roommates from the ban, and an amendment exempted people who help blind, disabled and illiterate people fill out their ballots from the criminal penalties.

But disability rights advocates remained alarmed by the legislation even after it was amended, saying it might violate federal law.

“We were very concerned about HB 209 even after the amendment was presented. According to the Americans With Disability Act, every individual should be provided equal opportunity to participate in all services, programs and activities,” Barbara Manuel, president of the Alabama chapter of the National Federation for the Blind, told Bolts.

Alabama is already one of the most difficult states in the nation for voters. It’s one of only three states that doesn’t allow any options for in-person early voting. It’s also one of only 15 states that requires voters to provide a specific excuse to request an absentee ballot. Approved reasons include if the voter won’t be in their home county on Election Day, if they’re ill or disabled, if they’ll be at work for the entire 10-hour stretch that polls are open, or if they’re a caregiver for a homebound family member. And Republicans passed a strict voter ID law more than a decade ago. 

This bill is the latest GOP attempt to criminalize get out the vote efforts, casting a pall over normal political organizing in the name of election security. Alabama Republicans’ stated goal was to end what they describe as “ballot harvesting”—outside groups churning up large-scale operations to collect absentee ballots from voters and deliver them to election offices. Republicans claim these operations create ripe opportunities for voting fraud. While absentee ballot voting fraud does exist, there are only a few known examples (the best-known of which was actually carried out by a Republican operative in North Carolina who was eventually indicted for it).

But voting fraud has become a rallying cry for Republicans across the country as they seek to restrict methods of voting—especially by those Republicans who have embraced conspiracy theories about the 2020 election. A recent analysis by States Newsroom found that more than 100 election-related legal penalties were added to state laws in 2022 alone, across 26 different states. The majority of them were directed at voters and people assisting them.

This bill has been championed by Alabama Republican Secretary of State Wes Allen, who has pushed conspiracy theories related to the 2020 presidential election and who introduced a similar bill in 2022, when he was still in the legislature. 

Allen said the bill “makes incredible strides in protecting the rights of Alabama voters to cast their own votes without undue influence” in an opinion column in the Alabama Ledger.

“HB209 would make it illegal to pay, or to be paid by a third party to collect absentee ballot applications or absentee ballots from Alabama voters. Furthermore, it would eliminate the ability of organizations to sow the seeds of chaos and confusion by sending pre-filled absentee applications into our state,” he continued. “Our elections are the foundation of our constitutional republic, and nobody should be paid for their absentee application or their ballot. Ballot harvesting should not be a job description.”

Allen’s vocal support of this bill is his latest attack on voting access. When he was a state lawmaker, Allen introduced legislation to ban curbside voting and outside donations and grants to help finance local election offices, both of which became law. 

Allen was one of four election deniers to win a secretary of state election during the 2022 midterms. One of his first acts in office was to withdraw Alabama from the Electronic Registration Information Center (ERIC), a national system used by 30 other states to share voter registration data to identify people who had moved or died so they could be removed from voting rolls. That system became the target of right-wing conspiracy theory websites like the Gateway Pundit after the 2020 election, and Allen echoed their false claims, claiming the bipartisan, multi-state organization was a “Soros-funded, leftist group.”

In the session’s final stretch this year, HB 209 e seemed to be on a glide path to becoming law. It was approved by the GOP-dominated house by a 76-28 vote along party lines last month and had been approved in committee in the senate, where Republicans hold a 27-8 majority.

But the bill was surprisingly left off the schedule when the senate convened last Tuesday on the final day’s legislative session.

It’s unclear exactly why the bill stalled out. Sources say that some Republican lawmakers privately expressed concerns about collateral impacts on voters—and some speculated that the Republican tasked with pushing it through the senate had other priorities.

“Some concerns came from the Black caucus, and some came from some Republicans who thought the elderly would get confused,” an Alabama Republican who requested anonymity to discuss private conversations told Bolts.

Sources also speculated that Garlan Gudger, the bill’s lead sponsor in the senate, may have prioritized another controversial bill of his that targeted vaping products, to the detriment of the absentee voting bill. Neither bill passed the senate.

“He had the vaping bill, which had really been a priority for him,” said ACLU of Alabama Policy & Advocacy Director Dillon Nettles. “I think that that certainly did play out in our favor.”

Allen, Gudger and Representative Jamie Kiel, the Republican lawmaker who introduced the bill in the state House, didn’t respond to calls and emails requesting comment for this story. 

The bill died in the Senate just days before the U.S. Supreme Court struck down Alabama Republicans’ aggressive congressional gerrymander, upholding a key section of the Voting Rights Act ruling to rule that the state had illegally diluted Black residents’ voting power. The conservative Supreme Court has been hostile to the Voting Rights Act in past rulings, so this 5-4 decision, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the court’s liberal wing, came as a shock. Alabama will likely now have to create a second Black-majority congressional district.

The ruling does nothing to stop Alabama Republicans from pushing aggressive bills to curtail voting access, however. A decade ago, the U.S. Supreme Court ruled in Shelby County v. Holder that Alabama and other states with a history of racist voter suppression no longer had to submit any changes to their voting rules for preclearance by the federal government. That’s led Republicans to flood those states—and others—with a bevy of restrictive changes to election law. Voting rights advocates and Democrats think there’s a strong possibility that HB 209 will be reintroduced next legislative session—with more time for Republicans to push it through.

“It’s coming. This secretary of state is not going to give up,” said Singleton. “We know we’re going to have to have a real fight next year on this bill. It’s going to come back.”

“I don’t think we’re out of the woods,” said Nettles.

The post Voting Rights Just Got a Second Surprise Win in Alabama appeared first on Bolts.

The case asked whether the congressional map Alabama adopted in 2021 is an impermissible racial gerrymander. After the legislature drew just one majority-Black district out of seven in a state that is roughly 25 percent Black, a lawsuit filed by voting rights groups argued that this violated section 2 of the VRA. A trial court sided with plaintiffs, but in early 2022, the Supreme Court stayed that ruling, let the state use the map for the midterms, and granted a review of the case. For voting rights advocates, the risk went beyond the court preserving Alabama’s map: they feared its ultra-conservative majority may render Section 2 altogether moot. 

Instead, the court on Thursday issued a reprieve for the VRA. In a 5-4 ruling authored by Roberts—joined by Justice Katanji Brown Jackson, Sonia Sotomayor, Elena Kagan, as well as Brett Kavanaugh—the court reaffirmed Section 2 and used it to strike down Alabama’s map. The state now has to create a new district that will be likely to elect a Black Democrat, an outcome that may trigger similar results elsewhere in the South, starting in Louisiana. 

Voting rights advocates breathed a sigh of relief at the surprise outcome, thrilled to see the VRA survive.

“I was completely floored,” Ruth Greenwood, who coordinated an amicus brief on behalf of the plaintiffs as director of Harvard Law School’s election law clinic, told me of her initial reaction. “It’s not just a win for the plaintiffs, it’s a full-throated defense of the way the Voting Rights Act has been applied to redistricting. It’s pretty fantastic.” 

But they also remained wary as they cheered, warning that by chipping away at the VRA and other voting rights tools for years, the court has left them shadows of their old selves. The decision on Thursday does nothing to revive Section 5 of the VRA, which forced certain jurisdictions with a history of racist voter suppression to seek preclearance from the Department of Justice before drawing new lines or making other changes to their voting rules; absent that requirement, litigation often drags on for years after harmful changes are already into place.

“I view this outcome as a victory, but it’s a victory in the context of profound losses that still need to be addressed,” says Justin Levitt, a law professor at Loyola who is deeply experienced in redistricting litigation. Levitt worked at the DOJ at the tail end of the Obama administration and at the White House as a voting rights adviser in the early stages of Joe Biden’s presidency. 

I talked to Levitt hours after the court’s ruling Thursday to break down Allen v. Milligan, racial gerrymanders, how Section 2 has been applied—and how it will be applied going forward.

In an extensive conversation, Levitt laid out conflicting emotions—calling the ruling a “status quo decision” that largely sticks to long-established precedent but also explaining why, in an era of dominant conservative jurisprudence, that alone feels momentous.

Most court observers expected the court to further gut the VRA. How surprised are you by this ruling?

I’m very happily surprised. And the reason for the surprise isn’t a knee-jerk reaction to the justices’ conservative disposition—this is a very conservative court, and it remains a very conservative court even after today. 

I’m surprised because this court has not been particularly friendly to voting rights, particularly voting rights in the racial justice sphere, particularly the Voting Rights Act. I’m surprised because the chief in particular has expressed hostility to some basic tenets of the Voting Rights Act, including in opinions, including going back to his time at the justice department. And I’m surprised because, in the lead up to this case, a trial court gave an A-plus reading of existing precedent, and the Supreme Court in January of 2022 stayed that; that led to an expectation that the court was prepared to upend an awful lot of settled precedent. So all of the evidence leading up to this case pointed to the potential for a very bad ruling.

Let’s start with the basics: The court said Alabama’s congressional map violated Section 2 of the VRA. What’s the history of Section 2, and how does it assess such a map? 

In 1982, Section 2 of the VRA was amended to say that maps with a discriminatory effect would be illegal. In a 1986 case, Thornburg vs Gingles, the court clarified what that would mean in practice: there would be a number of things the plaintiffs have to prove in order to make a successful case. 

Condition one: The minority group or groups have to be big enough to be a majority in a single member district; if they’re not, that shows that the way the lines are drawn isn’t the thing keeping minority voters from political power. 

The second thing you have to show is that there’s a difference in the way minority voters vote.  The VRA doesn’t assume that, for example, Black voters and white voters are going to vote differently; but if you can prove that they vote differently, and that districts are aligned such that they lose most of the time, then that’s a potential problem. 

The third thing you have to prove is that there’s a tie-in to discrimination; it’s not just dumb luck. This does not have to find a specific intent with respect to the lines: It can be discrimination elsewhere in the social or electoral structure that leaves minority voters at a disadvantage. The easiest way to see it is in literacy tests in the original VRA: It’s obvious if you keep a segment of population from being able to read and write, and then you design a voting rule that says you got to be able to read and write in order to participate, that the earlier discrimination feeds the later problem. The VRA is meant to break down these distinctions; if you have discrimination, and you have an electoral process that turns that discrimination into electoral loss of power, then you’ve got to fix the electoral loss power.

Many voting rights advocates worried that this case would obliterate the test you just laid out, but it did not. How would you describe the ruling’s significance?

The significance of today’s case is that it reaffirmed that, yes, this is how we do VRA cases.  The stakes were that the supreme court could have changed the rules entirely; Alabama was asking the Supreme Court to change the rules in really radical ways—and the court said no. 

The court didn’t make it any easier to win voting rights cases. It just declined to make it much, much, much, much, much, much harder. This is a status quo decision. 

Don’t get me wrong, I’m very excited by today’s result, and I think voting rights activists are very excited by today’s results. But it’s a measure of the fetal position we find ourselves in as voting rights advocates that the court just doing its job gets us excited. The fact that the court didn’t blow up the entire structure, and the fact that that’s cause for celebration, shows you a little bit about how far the window has moved.

When it comes to those radical claims Alabama made in the case, what worried you the most going into the ruling? What changes are you most relieved to avoid?

There were so many. Alabama threw a bunch of grenades out on the ground, and the supreme court just declined to pull any of the pins. The theories that Alabama was putting forward would have radically changed the construction of the VRA across the board, and it shows how much the Overton window has shifted that people took Alabama seriously. 

One of the things they claimed is that you need to show an intent [to discriminate], and not just effect; and that discrimination is the sole reason for the map looking like it did, not just one of the reasons. That’s a radical revision, not just of voting rights law, but of racial discrimination law generally—and of law on any discrimination. Alabama also argued that Section 2 of the VRA doesn’t apply to redistricting at all, which is patent nonsense. 

This was first and foremost a case about Alabama’s map. So how did the court test it against Section 2, and what’s next for redistricting there?

The case in Alabama was whether there should have been a second congressional district drawn in Alabama responsive to Black voters there. Alabama said there should only be one; litigants said at this point there should be two.

So the way in which [the Gingles test] cashes out in Alabama: Condition one, there are enough minority voters to form a reasonable second congressional district responsive to the minority vote. Condition two, voting is exceedingly polarized by race. And is there a tie-in to discrimination? Yes, unfortunately, Alabama shows not only the lingering impacts of past discrimination, but present age discrimination that helps you understand why the loss of minority political power is not just happenstance. 

So it requires a second district that responds to minority voters. 

The trial court didn’t say you have to draw a district exactly here. It said to the legislature to go back and fix it. The legislature gets first shot, and the trial court will be watching very carefully.

Alabama’s map was adopted two years ago and was used in the midterms last year. How do you address the challenge that litigation takes so long that illegal maps are in place for years no matter the final outcome?

Voting cases are different because you can’t fix the damage afterwards. Discriminatory elections have consequences: They’re taking place, and they’re discriminatory, and that means that laws are being put in place and executive actions are being instituted in ways that are not legitimate. The other thing is that VRA cases are hard and complicated; they would take years even if the defendants weren’t fighting like crazy, and they’re often fighting like crazy

That’s why it was so important to have the preclearance regime of Section 5: That stopped the problem before it took effect. And since the Shelby County decision, absent action from Congress, that’s just gone. Folks are right to be frustrated, even with today’s decision.

The supreme court stayed the trial court’s decision against the map in early 2022, saying that it was too close to the election to change it. Could that happen again? Could litigation over a new map drawn by lawmakers drag on for so long that 2024 is held under other illegal lines?

Theoretically yes, because people in robes do what people in robes want to do. So could it happen? Sure.

But I think that’s extremely unlikely. The trial court was very careful in its original opinion, and there’s no shortage of attention now that the Alabama voters were due a map last cycle and they had to sit through an election that was discriminatory. The supreme court has now said the trial court was right, and the trial court is likely to give the legislature a real shot but it is also extremely likely to monitor the legislature’s work very carefully and demand proof that its new math satisfies the VRA and remedies the problem. I think that if the legislature engages in bad faith, particularly in drawing a map that does not fix the problem, the court will step in.

I’d like to look beyond Alabama to what the ruling signal for future cases. For one, there’s similar litigation in Louisiana and speculation of a broader domino effect in the South. What does this decision mean for other states?

I think of Louisiana as the next map standing, the one most directly related, and this will help the litigants in Louisiana proceed in a much more straightforward analysis of the Voting Rights Act than people were expecting. I don’t think it’s far to assume Louisiana is going to fall. There are also pending challenges in Georgia and in Texas, a somewhat related case in Florida (though it’s under the state constitution). So there are certainly other cases in the pipeline. 

You’ve referred to the decision as preserving the status quo. But is there any small way in which it makes it harder or easier for future lawsuits to meet the Gingles test?

It’s mostly the same. There are little caveats in the opinion, caveats that were there in the law before, little pieces that I’m sure states will use to fight back against VRA claims; I don’t think any of them are new, they may be slightly differently phrased.

What’s an example of such a caveat?

The court emphasized VRA cases are hard. The chief said, look, this isn’t that many districts we’re talking about and you don’t have to worry about proportionality because no state has proportional representation for its communities of color. That’s a pretty big societal red flag, to not worry communities of color are represented consistent with their numbers in the population. And that also jumped out at me as recognizing the limitations of litigation under the VRA as currently construed; the court’s not saying you should bring and win a whole bunch of cases.

Justice Kavanaugh, a decisive fifth vote in the case, wrote a concurrence that qualifies some of the majority opinion; he states that race-based redistricting cannot “extend indefinitely.” Does that concern you, as to what it means for this future pipeline?

No. I mean, his concurrence reflects some wishy-washiness, but that wishy-washiness is all over the rest of his jurisprudence. This is a majority that surprised people because it’s a majority that most people were not counting on in VRA cases, and I think the skepticism leading up to today is still warranted for cases tomorrow.

Throughout our conversation, you’ve warned that the situation remains precarious for VRA litigation no matter today’s decision. Taking a step back, how would you assess the health of that law at this juncture—to what extent has it become a shadow of itself?

It’s part of why we’re in the fetal position. There’s absolutely no question that the VRA remains one of the crown jewels of the civil rights movement and that it is still one of the most powerful tools there is. And also, in its current state, it is nowhere near enough. Shelby County was a huge blow; the Brnovich decision made all Section 2 cases harder; and there have been a number of smaller decisions that have also made cases harder to prove and harder to win. 

It’s part of why, like others, I view this outcome as a victory. But it’s a victory in the context of profound losses that still need to be addressed.

It’s part of why there was such a strong emphasis on restoring the Voting Rights Act in the John Lewis Voting Rights Restoration Act. To secure real justice, it still has to be a priority. You really need Congress to step in to set national rules. 

The interview has been edited for length and clarity.

The post Surprise After Supreme Court Saves What’s Left of the Voting Rights Act appeared first on Bolts.

On his first day in office on Monday, Allen terminated Alabama’s membership in the Electronic Registration Information Center, a consortium of roughly 30 states that share data about their voter rolls to keep them up to date, citing concerns about data privacy.

“I made a promise to the people of Alabama that ending our state’s relationship with the ERIC organization would be my first official act as Secretary of State,” he said.

Allen’s quick move, fueled by right-wing conspiracies about ERIC that spread last year, alarmed election administration professionals. 

“Anything that makes elections more secure is a target for the election deniers, and the attacks on ERIC are just another tactic in this effort,” said David Becker, the executive director of the Center for Election Innovation & Research, an organization that works closely with election administrators. 

Becker, who is a non-voting member of ERIC’s board after helping spearhead its launch a decade ago, attributed the decision to the lies about election administration spread by election deniers. 

Allen first promised he would leave ERIC on the campaign trail last year, shortly after the conservative website Gateway Pundit published a series of stories falsely tying ERIC to George Soros, the progressive-leaning billionaire. Those stories, which called ERIC a “left wing voter registration drive disguised as voter roll clean up,” spread among Republicans who were already fanning other conspiracies about election administration, helping turn ERIC into a target of far-right organizations. Allen himself referred to Soros in explaining his hostility to ERIC in early 2022. 

ERIC is financially supported by its member states, including many staunchly red ones that are governed by Republicans, such as South Carolina and Texas, as well as many blue states. The current chair of ERIC, Mandi Grandjean, is the deputy assistant secretary of state of Ohio under Secretary of State Frank LaRose, a Trump-endorsed Republican. 

John Merrill, Alabama’s outgoing secretary of state whom Allen replaced, and a Republican known for his own poor record on voting rights—he threatened to go after hundreds voters who mistakenly thought they could vote in a partisan runoff, failed to inform voters of their rights, and lashed out at critics of the state’s voting rights record—steadfastly defended ERIC throughout 2022. 

“This continued narrative of ERIC being a George Soros system is untrue. ERIC was not founded nor funded by George Soros, and to claim otherwise is either dishonest or misinformed,” Merrill said in November. Becker echoed that characterization on Wednesday. “Putting aside the nature of those attacks, it’s just 100 percent false,” he said. 

Tammy Patrick, the CEO of Election Center, a national organization that represents election administrators, stressed that ERIC was built to meet the practical needs of officials from both parties. “From its inception ERIC has been a bipartisan effort,” she told Bolts on Wednesday. “The policies and functionality were all created taking into account the perspectives of election administrators from across the political spectrum.

Voter registration across the United States is largely in the hands of local offices whose resources are limited, in part due to insufficient federal funding, creating strains that private or non-profit organizations have filled. This has, in turn, opened the door for right-wing conspiracies about those funding sources, leading to efforts by some conservatives to further cut off external assistance to local election offices.

First launched in 2012, ERIC is one of those organizations. Its member states share their voter rolls with ERIC, which matches them to one another and to other agencies like Social Security to identify duplicates and to clean the voter rolls of people who have moved or died. 

“ERIC is the first and still only tool that states have to be able to keep up with the mobility of the American public,” Becker said. “People move a lot in the United States, and that means voter lists are often out of date, and keeping up with all that mobility is a real challenge.” Becker added that ERIC can also flag when a voter has cast a ballot in two different states in the same election, a guardrail against fraud. Where voter rolls are not cleaned up or are discovered to have errors, Republican politicians are often quick to point to erroneous voter rolls to make false claims of fraud.

“ERIC allows states to basically combine forces and share data with each other in a system that they themselves run,” Becker said.

If a state is not part of ERIC, Patrick said, local election officials will face a higher burden to run and update their systems.

“ERIC states have the advantage of sophisticated data-matching engines to aid in keeping their voter rolls as accurate as possible—this can be a monumental task for election administrators given the transient nature of the voting population and the consistent under-funding of our election infrastructure,” Patrick told Bolts. 

Becker agreed that the departure from ERIC would erode the state’s voter lists, which could lead to a cascade of problems. 

“Voter lists are going to be less accurate, they’re going to have more people who have moved out of Alabama who are on their lists, they will likely have more people who have died remain on their list because ERIC is very good at identifying people who died, they are likely going to see an increase in things like provisional ballots and returned mail, which are consequences of having out-of-date lists, and they are going to lose access to one of the great tools to investigate potential fraud,” he told Bolts.

Allen’s office did not reply to a request for comment. In his statement, Allen raised concerns about the threats to the privacy and security of registered voters’ information when Alabama shares its data with ERIC and other states. 

“Providing the private information of Alabama citizens, including underage minors, to an out of state organization is troubling to me and to people that I heard from as I traveled the state for the last 20 months,” Allen said. 

Allen is one of four Republicans who aligned with election deniers in raising false doubts about the results of the 2020 presidential election, and then won a secretary of state election in 2022. All four prevailed in reliably Republican states, while election deniers who ran in the traditional battleground states like Arizona or Michigan failed, but voting rights advocates have warned to not look past places like Alabama. 

While in the legislature, Allen sponsored and supported legislation restricting ballot access in the name of combating voter fraud, such as a bill that was signed into law in 2021 that codified Merrill’s efforts to ban curbside voting in the state. In his run for secretary of state, Allen echoed other Trumpian conspiracies regarding mail-in voting and promised there would be “no drop boxes” in Alabama if elected. 

Becker pointed out that election deniers often go after voting and counting procedures that are known to be secure, such as ballot drop boxes, attacks he compared to the claims about ERIC.

“Individuals who spread these lies are actually attacking election integrity, and the infrastructure of election integrity, while they use language related to election integrity,” Becker said.

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