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.

State Public Defender Rémy Starns holds a monthly virtual gathering with the lawyers in charge of Louisiana’s 42 public defender offices. “Coffee with Rémy,” as he calls these meetings, has become more tense in recent months as Starns rolls out pay cuts.

Louisiana passed legislation in March giving Governor Jeff Landry, a Republican who took office in January, more command over the state’s public defense system. Starns quickly told district defenders in charge of indigent defense across the state to start bracing for cuts to their pay—a reversal of raises the state had issued for defenders with basement-level salaries just a year ago. 

During Starns’ first meeting with public defenders under the new law, which gives him more control over the state public defense budget, he warned of the cuts on the horizon—to the point of even encouraging district defenders to open private practices to supplement their income, as the Louisiana Illuminator first reported last month. The axe finally fell during Starns’ meeting with district defenders last week, when he announced salary cuts of up to 51 percent and a new scheme for paying district defenders. 

In his meeting with district defenders, Starns insisted that he’s simply redistributing the state’s public defense budget “with goals of getting the most money, the most resources in the courtroom.” But public defenders and experts in indigent defense say Starns has provided few details on how he will accomplish that. Instead, his new plan stretches an already-underfunded system, and could jeopardize the quality of representation for the 146,000 people in Louisiana who need legal aid each year, they say. 

Starns’ plan removes prohibitions on private practice for district defenders and boosts their pay if they take on their own cases in addition to managing their regional public defense offices. The plan also ties district defender pay to fees that clients must pay their office whenever they’re convicted, which critics say provides an incentive for offices to encourage quick convictions. 

“When you have a system that incentivizes lawyers to lose, that’s a problem,” said Will Snowden, a Loyola University New Orleans law professor and former public defender. “How can any poor person reasonably believe that their public defender has their best interests at heart?”

Louisiana has long struggled with providing adequate representation for the roughly 85 percent of people accused of a crime who are too poor to afford a lawyer. Making the problem more dire, the state has the highest rate of incarceration in the U.S., and Black people are locked up at a much higher rate than white people. But public defenders, experts, and a member of the former board that oversaw legal aid told Bolts that problems across the system were consequences of a lack of reliable funding, not the people who oversaw it. 

Landry, who in his first months as governor has pushed for and enacted dozens of bills that will increase traffic into Louisiana’s criminal legal system, also championed the law giving himself more say over indigent defense in the state. The legislation disbanded the previous 11-member board that decided the state public defense budget. In its place, it gave more control over that funding to Landry and created a new nine-member oversight board with less power over how the state spends its public defense dollars.

The legislation also cut money to programs that defend people against capital punishment; Landry, a death penalty supporter, has already signed legislation to resume executions in the state. 

“This is the wild west now, and it’s never really been tame,” Jean Faria, Louisiana’s state public defender from 2008 to 2013, told Bolts of Landry’s newfound authority.

Landry and Starns did not respond to requests for comment or questions for this story.

During the debates over the bill, Landry insisted the changes were needed to improve indigent defense. “The Louisiana Public Defender system lacks accountability and has strayed from providing defense and moving criminal cases,” he said of the bill at the opening of the legislative session. “We propose to increase transparency and refocus the mission of providing defenders and support personnel for much needed efficiency.”

But experts in indigent defense told Bolts that the new law comes with few safeguards to protect against Landry or future governors abusing the public defense budget. They say the legislation removed a firewall of oversight that shielded the public defense system from the governor’s influence. One lawyer worried public defenders in charge of legal aid offices throughout the state will either quit or be forced to provide subpar representation because of salary reductions. Others say the legislation doesn’t fix existing problems with how Louisiana administers legal aid. 

“I don’t see how there’s a way to look at this bill with honesty and in good faith and see that it will actually do anything to improve indigent defender services in the state,” Susan Meyers, a senior staff attorney with the Southern Poverty Law Center who worked on a 2017 lawsuit over Louisiana’s representation of poor people, told Bolts.

Just over a decade ago, Hurricane Katrina devastated Louisiana’s indigent defense system. 

Louisiana is the only state in the country to primarily depend on money from court fees and traffic tickets to finance legal aid, including a $45 fee their clients have to pay if they’re convicted. When the money disappeared in the wake of Katrina, so did New Orleans’ public defenders. Prior to the storm, the office had 42 attorneys and six investigators. Afterwards, those numbers shrunk to six attorneys and a single investigator. Thousands of people jailed in the Orleans Parish Prison when the storm hit remained locked up for more than a year without talking to a defense lawyer. 

As it became clear that the state didn’t have the infrastructure to ensure that people were guaranteed their constitutional right to a lawyer, the legislature in 2007 passed a law aimed at bolstering public defense. The bill, known as the Louisiana Public Defender Act, created a state fund to supplement money coming in from tickets and court fees. The bill also established an 11-member board to oversee public defenders and administer that new pot of money. This board, called the Louisiana Public Defender Board (LPDB), consisted of law professors, advocates, retired judges, and lawyers from across the state who were appointed by a variety of entities. It additionally created a scheme to make sure that people facing the death penalty received qualified lawyers with specialized training in handling those complicated cases.  

Experts lauded the changes. “They recognized they had a problem, they addressed it, they fixed it and that’s something I just think is great,” David Carroll, who at the time worked at the National Legal Aid and Defender Association, told NPR in 2007. (Caroll now leads the Sixth Amendment Center, a nonprofit working on improving indigent defense.) 

When the original plan to assign lawyers to capital murder cases didn’t work out, the LPBD instead decided to contract with specialized nonprofits to perform death penalty work from trial to post-conviction appeals. “It made all the difference in the world,” said Faria, the former chief public defender, who later served on the LPBD coordinating capital defense.  

Fewer people were unfairly sent to death row in a state where four out of five death sentences have been overturned, contributing to the highest reversal rate and number exonerations per capita in the country.

While the 2007 legislation created a blueprint for the successful administration of public defense, it failed to solve the funding problem. Law enforcement agencies continued to receive outsized funding compared to lawyers representing people who couldn’t afford a lawyer. In 2015, for example, New Orleans taxpayers paid $355 per capita to the New Orleans Police Department, $17 per capita to the district attorney, and $2.40 per capita for public defense, wrote former Chief Defender Derwyn Bunton in an op-ed. 

By 2016, 33 of 42 public defender offices across the state were forced to restrict services at some level, with many offices placing people on months-long waitlists because funding deficits had made them unable to take on new clients. 

“I think it’s fair to say everyone thinks there was problems. No one thinks the system was perfect by any stretch of the imagination,” Carroll told Bolts last month. “I’m a firm believer that it’s mostly rooted in the lack of funding and the over reliance on traffic tickets.”

A class action lawsuit filed by the Southern Poverty Law Center (SPLC) the following year alleged the “poor in Louisiana are denied access to effective and meaningful attorney representation when facing criminal charges.” The complaint, which has since been dismissed, included accounts showing how people facing charges received poor representation. One man had such minimal contact with his lawyer that the lawyer allowed a judge to issue a bench warrant to arrest him, even though he was still incarcerated. Another, who was facing up to 30 years in prison, was represented by a lawyer who worked as a prosecutor in another parish. He’d spoken to his lawyer for just five minutes over the course of more than six months.

Landry’s seizure of public defense happened during a nine-day special legislative session on crime, when the Republican-controlled legislature passed all 39 bills put before them—including laws to automatically place 17-year-olds in the adult system, limit post-conviction relief, and resume executions through new methods and increased secrecy.  

Starns, the state public defender, and State Senator Mike Reese, the bill’s sponsor, were the only two people to testify in favor of the bill restructuring the state public defense system during a House committee hearing on it in February, while dozens of people testified in opposition. Critics raised concerns about giving Landry more control over public defense as he ratchets up punishment in the state, a move that will create the need for increased legal aid. “The statute as written risks creating further instability and backlogs in a criminal legal system that is about to face enormous and perhaps unprecedented changes,” testified Pamela Metzger, a Southern Methodist University law professor who represented prisoners who couldn’t afford an attorney in the wake of Hurricane Katrina. 

The previous board also worked within the governor’s office but its power was spread among 11 people instead of a single governor’s appointee. Though the state public defender will now have the ultimate authority over legal aid, their appointment will be subject to approval by the senate and the new nine-member oversight board, which will be responsible for approving contracts over $250,000. 

This new board met for the first time last month. The governor selects four of the board’s nine members, and he also gets to choose a fifth out of a list submitted by the Louisiana Association of Criminal Defense Lawyers and Public Defenders Association of Louisiana. The remaining members are named by the Louisiana Supreme Court and the leaders of the two legislative chambers.

There’s no longer a requirement that the board reflect the racial and gender makeup of the state, spurring concerns about whether it’s built to provide the necessary oversight. No one on the board even appears to have a background in public defense. 

“It’s just frustrating that we don’t have the kind of experiential knowledge represented on this board,” Snowden told Bolts. “I think that’s certainly going to have negative effects on what public defense looks like in the state.” 

Malia Brink, a senior policy attorney at Southern Methodist University’s Deason Criminal Justice Reform Center, warned the House committee in February of the possibility that the governor could act through the chief public defender to devalue public defense. “If you have someone appointed by the governor, then the governor doesn’t have to say anything,” Brink said during her testimony to the committee. “If you know where the governor stands, you may be influenced or pressured to act accordingly.”

She continued, “No person, not even a governor, can be both prosecutor and defender.”

The dual powers will be especially relevant in death penalty cases, the majority of which are represented by public defenders. The governor is in charge of signing death warrants and deciding whether to spare someone’s life by granting a clemency petition. As attorney general, Landry sued to block clemency hearings for 55 death row prisoners who filed petitions in hopes they’d be spared by outgoing Governor John Bel Edwards, a Democrat, before he left office. 

Under the new law, Landry’s appointee now has more control over a shrinking pot of funding for defending poor people who face execution; as part of the legislation, lawmakers also cut funding to programs representing capital defendants from 35 percent to 25 percent of the public defense office’s budget. 

Tony Clayton, the DA of West Baton Rouge, Iberville, and Pointe Coupee parishes who led the Landry transition team that pushed for restructuring public defense, told nola.com in February that the goal of the legislation was to spend less on death penalty defense organizations. “The constitution says they’re entitled to a defense, but they sure as hell aren’t entitled to a Cadillac defense,” he said. 

Louisiana hasn’t executed anyone since 2010 but lawmakers passed a bill last session that will make it easier to restart executions even in the face of lethal drug shortages. The legislation authorized nitrogen and electrocution as alternative execution methods to lethal injection and made it easier to secure drugs by shielding suppliers from public disclosure.  

“We all believe that Landry is going to have a heavy hand in making sure people get executed,” said Nick Trenticosta, a Louisiana death penalty lawyer. He estimated that five people of the 62 people on death row have exhausted their appeals and are eligible for execution. 

Starns could elect to cut all funding to the seven death penalty programs that get state funding for capital defense, or he could still fund those programs but mandate they move into district public defender offices and perform other work. Starns hasn’t yet announced his budget, but several sources told Bolts that he’s been meeting with the death penalty organizations to hammer out a new plan. 

“If there is not a concerted effort to insulate and isolate each of those units from the budgetary and caseload issues associated with already overburdened public defenders, then you will see a significant uptick in death penalty prosecutions and convictions and sentences,” said Faria, the former state public defender. “You will see a continued retention problem in the offices themselves and an erosion in the Sixth Amendment right to counsel.”

Louisiana’s Public Defender Board first appointed Starns to be the state’s head public defender in 2020. Prior to taking over, he was a prosecutor in Avoyelles Parish and a founding member of the LPDB. He had no experience himself working in the trenches as a line public defender, although he had done some criminal defense work in private practice. 

In private practice, Starns also defended the state against the 2017 SPLC lawsuit alleging that its representation of poor people was deficient. The lawsuit, he wrote in a filing, was filled with “loud howls regarding a lack of funding.” 

Starns, whom Landry reappointed to the newly empowered role last month, has maintained that he wants to create a more stable system with better paid public defenders, but his critics say he’s not experienced enough in public defense to handle the job. Several people told Bolts that Starns does not believe in caseload standards, a tool the American Bar Association recommends to determine how many cases defense lawyers should handle at a time to ensure their clients receive effective representation. 

The standards are also used by policymakers to decide funding by looking at how many lawyers are needed to handle an office’s caseload. Instead, Starns measures how much money each district receives by examining how many people it represents, a figure that public defense experts say doesn’t accurately reflect the workload of each office because some people may have several cases and those cases can vary in severity. “Now I have real concerns that he is going to just develop these fantastical imaginary guidelines to fund those officers at a bare bones level,” said Flozell Daniels, who served on the LPDB for nearly 11 years until 2023.

Though parishes still rely on traffic tickets and court fees to partially fund indigent defense, the legislature under Edwards had increased state funding for public defense in recent years. Last year, it allocated more than $50 million, nearly $20 million more than in 2015. Despite those increases, district defenders still have trouble attracting and retaining line defenders—who are not state employees and do not receive state benefits such as health insurance and retirement, although some district offices pay for line defenders to buy private insurance plans.

“Excessive workloads, depleted staff and attrition continue to be the biggest obstacles regarding our representation,” wrote Danny Engelberg, the Orleans Parish district defender, in the 2023 LPDB annual report. 

The pay raises last year were a bid to improve these staff and retention issues, said Daniels, who sat on the board when it approved the raises. “I see no reason why we shouldn’t have competitive salaries to ensure that we can attract the best talent because that’s what’s going to really create some high functioning public defenders,” he said.

Daniels said Starns was clearly angered by their decision. During his virtual coffee hour with district defenders last month, Starns called the raises an “abomination” and an “irresponsible obscenity.” 

And his decision to reverse the pay raises was one of his first moves in his newly empowered role. Prior to the raises, defenders made between $50,000 to $155,000 per year, according to the Louisiana Illuminator. After the raises, they made between $95,000 to $160,000. Their compensation was based on several factors, including a $20,000 bonus for defenders who solely worked in public defense and did not work in private practice. 

Under the new scheme, according to a slideshow detailing the plan obtained by Bolts, district defenders will make between $60,000 and $180,000. 

The state hasn’t yet passed this year’s budget so it’s not clear how much Starns will have at his disposal, but he says his plan to change how district defenders are paid will result in better paid line defenders. Still, two district defenders told Bolts that even marginally better pay won’t make those jobs easier to fill. They said they regularly give their line defenders raises but still struggle to retain them because it’s difficult to compete with private law firms that can pay much more and offer a more comfortable schedule and benefits.

John Lindner, head defender of the 22nd Judicial District, which covers St. Tammany and Washington parishes, told Bolts he hadn’t asked for a raise in his 12 years on the job, largely because his office was facing financial issues. Last year’s raise, he calculated, amounted to a 2.5 percent increase for each year he’s worked. “In the grand scheme of things, you know, it wasn’t a big, big thing. It was something we should have gotten anyway.” 

The new plan promises bigger bonuses for districts that collect more in conviction and user fees. A district defender overseeing a district that collects $1 million in those fees will get a $20,000 bonus, while a defender whose district collects less than $250,000 will receive nothing. 

Defenders receive a 25 percent bonus for taking on their own caseload, a factor that some took issue with. “In a district my size that’s almost impossible,” said one district defender. “So I have no opportunity to get that additional [money] because I’m not able to take a caseload because I’m presently managing my district?”

Starns also announced that there will be no restrictions on district defenders working in private practice, dissolving the previous limitations on the extra work. The move contradicts ABA standards, which say that lawyers working at defense organizations should work full-time and not engage in private practice work.

Prior to Starns’ announcement about salary reductions, some worried that the cuts will force talented district defenders to quit. 

“Is everybody going to quit at once? I don’t know,” a district defender who asked not to be named out of fear of retaliation told Bolts. “I mean, you know, my biggest fear is that people won’t quit. And they’ll keep it part time because of the insurance. And then like, things will just run into the ground.”

After the meeting, Lindner said he was focused on changes that will improve indigent defense for clients. 

“What I want to see as an end game, is I want to see a public defender system that provides the best possible representation for poor people. And I want them properly trained, and I want them, you know, compensated fairly,” he said. “And I think it’s, you know, we still have a long way to go with that.”

The post Landry’s Power Play Over Public Defense in Louisiana appeared first on Bolts.

“We don’t invite these type of crimes in our community,” O’Malley told cleveland.com at the end of 2019. “But when they happen, the citizens of our community have made clear that they want the option [of capital punishment].” 

But O’Malley says his position on the death penalty has changed since then, and his office hasn’t produced a new death sentence since around the time he made headlines for his zealousness for the punishment. In recent months, while campaigning for his third term in office against a progressive challenger, O’Malley has said he would limit his use of the death penalty. 

“My feelings have certainly evolved; I do a lot of self-reflection as the prosecutor,” he said during a debate moderated by the Cleveland Metropolitan Bar Association in February. “But I can tell you this: If we have a mass shooting with mass casualties? My guess is you’d probably see it again.” 

O’Malley, however, still uses the threat of this punishment to win plea deals. In November of last year, his office filed and then dropped capital murder charges against a man who pleaded to life in prison. 

O’Malley’s local critics have denounced his resistance to examining wrongful convictions, amid unrest and dysfunction in his office’s unit that’s meant to assess innocence claims. O’Malley has contested prisoners’ attempts to prove their innocence and has opposed new trials for at least two men on death row despite evidence of their innocence; one of those men, Melvin Bonnell, has a pending execution date. In several cases, he retried people despite evidence showing they were not responsible for the crimes that sent them to prison. In another, he fought against compensation for a man who wrongfully spent decades on death row. 

“There is a pattern of stonewalling the grant of relief in innocence cases, rather than fulfilling the prosecution’s duty to do justice,” said Robert Dunham, a death penalty attorney and former executive director of the nonpartisan Death Penalty Information Center. “If Michael O’Malley has had a change of heart and is rethinking his approach to death penalty cases, one of the most important things to do would be to take a look at the cases that are already in the system.”

O’Malley’s evolution on the death penalty occurred during a pause in executions in Ohio that has stretched on for more than five years due to shortages of lethal injection drugs and reprieves granted by Republican Governor Mike DeWine. His shift also follows support for the death penalty dipping to record lows within his own party. 

But the possibility that executions may resume looms over the state. The state has executions scheduled as soon as October and December this year. And Republican lawmakers are attempting to restart executions in Ohio with legislation that would authorize the use of nitrogen to suffocate prisoners to death, a method first used by Alabama in January. If Ohio’s unofficial moratorium were to end, prosecuting attorneys in the state would play a critical role in which executions proceed, as they’d be responsible for requesting execution dates in the state. 

Twenty-two prisoners from Cuyahoga County are awaiting execution, about a fifth of all people on Ohio’s death row. Four people from the county are already scheduled for execution through 2027.

Bolts sent O’Malley a list of detailed questions about his approach to the death penalty and wrongful convictions. A spokesperson wrote in an email that he was unavailable until April, after his primary election, and encouraged Bolts to talk with him then. 

O’Malley’s challenger in the March 19 Democratic primary is Matthew Ahn, a former public defender and visiting professor at Cleveland State University of Law who told Bolts he would never seek the death penalty, citing data showing that it does not reduce murder rates and costs taxpayers more money than sentencing someone to life in prison. 

Ahn also criticized O’Malley’s office over what he calls a history of ignoring evidence of wrongful convictions. “An office that doesn’t take wrongful convictions seriously is not an office that’s built for justice,” Ahn said. 

O’Malley’s critics point to the case of Anthony Apanovitch, who was freed from death row six months before O’Malley took over in 2016 after DNA evidence led a judge to overturn his conviction of raping and murdering 33-year-old Mary Ann Flynn in 1984, and order a new trial. 

Former Cuyahoga County Prosecutor Tim McGinty had challenged the judge’s decision, arguing that Apanovitch should not have been freed because of a procedural mistake; under Ohio law, the defense has to request DNA testing in order for it to be used in a post-conviction appeal, but in Apanovitch’s case, prosecutors had secretly ordered the testing without his lawyers’ knowledge. The Ohio Supreme Court agreed with prosecutors and in 2018 Apanovitch was sent back to death row, more than two years after lower courts had freed him; in its opinion, the court acknowledged that its decision might seem “unduly formalistic or unfair.” After he was elected prosecutor, O’Malley continued to oppose Apanovitch’s efforts to win a new trial, arguing that he doesn’t think Apanovitch is innocent.  

Apanovitch’s lawyers say that he should be retried so a jury can properly consider two key pieces of DNA evidence in the case: a swab taken from Flynn’s mouth and another taken from her vagina. Once the defense found out about the state’s testing, they ordered their own. A defense expert found that the swab taken from Flynn’s vagina contained DNA that did not belong to Apanovitch, an assertion that the state’s expert has not contested and formed the basis for his 2016 release. While the state claimed the other swab, from Flynn’s mouth, contained DNA fitting Apanovitch’s profile, a defense expert said it did not in fact show Flynn’s DNA—raising questions about whether it was contaminated and came from Flynn in the first place. O’Malley has cited the oral swab as evidence of Apanovitch’s guilt and opposed bringing it back into court for further scrutiny.

Apanovitch has exhausted his appeals at the state level and his case is now in federal court. Dale Baich, a former federal public defender who has represented Apanovitch since 1991, said O’Malley could still take action by filing a motion asking for the case to be retried. He could also move to vacate the conviction. 

“He has the discretion and the authority to go into court to correct this injustice,” Baich told Bolts. 

When asked about the case, Ahn, O’Malley’s challenger in the March 19 primary, declined to comment, saying that it would be inappropriate to speak on specific cases. 

In another case, O’Malley argued that Joseph D’Ambrosio, who spent two decades on death row, was not wrongfully convicted despite a judge finding that prosecutors hid exonerating evidence that contradicted their narrative and withheld information showing that key witnesses were unreliable. D’Ambrosio had sued Ohio for wrongful imprisonment and sought compensation for his time behind bars after a judge overturned his conviction and death sentence in 2010. But O’Malley stood in the way of D’Ambrosio winning compensation by opposing his claim that he was wrongfully convicted until the Ohio Attorney General’s Office asked him to drop it. Even then, O’Malley maintained that he should not be compensated. “Should people who are not innocent get money?” he told the Associated Press in June 2021. Two months later, the state ultimately agreed to pay D’Ambrosio $1 million. 

As of 2021, Cuyahoga County had sent six people to death row who were later exonerated; only Cook County (Chicago) and Philadelphia County have seen more death row exonerations. Thirty-four more people have been found to be wrongfully convicted in Cuyahoga County since 1989, according to the National Registry of Exonerations. 

Making it more difficult for people to prove their innocence, the conviction integrity unit in O’Malley’s office in charge of investigating those claims has been accused of failing to properly review cases. 

Ron Adrine, a retired judge, began working with the unit in 2018 as a member of an independent five-member advisory board that was tasked with reviewing cases and making recommendations for which needed action from prosecutors. Adrine said he came out of retirement to join that board because he thought it would be a good opportunity to reverse injustices. He expected that it would meet regularly to decide when problematic convictions needed attention from prosecutors. 

“What happened though, was that we did not meet regularly,” Adrine told Bolts. “And when we did meet, we only reviewed a very few number of cases.” 

According to Adrine, the board reviewed less than 10 cases during his first two years on it and did not convene or analyze a single case from 2020 to 2022. In November 2022, Adrine plus the other four members of the conviction integrity unit’s external board all resigned, writing in a letter to O’Malley that they were troubled by the unit’s inactivity. They wrote that an internal panel at the prosecutor’s office responsible for first examining cases then deciding whether to funnel them to the advisory board had not met in two years. 

“We are forced to conclude that the [conviction integrity unit] does not function in the manner we anticipated when we agreed to serve,” read the letter.

Even when the external panel that Adrine sat on had the opportunity to work on a case, O’Malley’s office did not always listen to its recommendation. For example, Adrine and his colleagues spent 14 months investigating the case of Octavius Williams, who was convicted of attempted murder and sentenced to 15 years in prison in 2011. They found that Williams’ brother confessed to the crime numerous times and recommended a full exoneration. 

But O’Malley disagreed and refused to declare Williams innocent. “I think in this particular case, we did the best we could. I think we did what was right… I’ve also learned that there is a growth industry of attorneys who are trying to harvest wrongful conviction claims,” Adrine told Cleveland Scene in 2020. 

O’Malley agreed to allow Williams out on supervised release while awaiting the outcome of his appeal, yet he still fought to send him back to prison. Last month, a state appellate court vacated Williams’ conviction and ordered a new trial. Judge Kathleen Ann Keough wrote that the evidence clearing Williams was so overwhelming that O’Malley should not seek to convict him again. 

O’Malley hasn’t publicly stated whether he intends to retry Williams. To date, he has retried at least three men whose convictions were vacated because of exonerating evidence, Isaiah Andrews, Kenny Phillips, and Mark Sutton. All three were then acquitted during their retrials. 

Adrine said that even when his panel flagged evidence that made them question a conviction, prosecutors still sometimes failed to share that information with defendants. “There were cases where we thought that there was some exculpatory evidence, it should have been given to defense counsel, and it appeared that there was some failure to get that evidence into the proper hands in a timely fashion,” he said. 

Asked whether prosecutors were hiding exculpatory evidence that his panel flagged from people who are still in prison, Adrine said he was not permitted to disclose more details about his work for the office. “I can only say to you, that we were concerned about that as an issue,” he said. 

On the campaign trail, Ahn has accused O’Malley of dismantling the conviction integrity unit. If elected, he plans to bring back to the external board and add a formerly incarcerated person as a member. In response, O’Malley has said the unit is operating effectively. At a debate last month, he claimed his office is more effective in helping people overturn wrongful convictions than the Ohio Innocence Project, an initiative powered by lawyers working at the University of Cincinnati.

Mark Godsey, director of the Ohio Innocence Project, disputed that claim and slammed O’Malley’s history on handling innocence cases. The Ohio Innocence Project represented Andrews and Sutton, two of the men whom O’Malley unsuccessfully prosecuted again after their exoneration. “They turned into family,” Sutton has said of the organization. 

“On wrongful convictions, O’Malley started off strong, but then went downhill quickly,” Godsey, who’s also a professor of law at the University of Cincinnati, told Bolts. “There are prosecutors in that office who are trying to do the right thing, but it seems like O’Malley himself is not one of them.”

The winner of the Democratic primary will face Republican candidate Anthony Alto in November, though Cuyahoga County leans heavily Democratic. In January, the Cuyahoga County Democratic Party declined to endorse O’Malley or Ahn at a party meeting, which local media described as a snub for the incumbent. 

O’Malley has received an endorsement from state Senator Nickie Antonio, a Democrat who is sponsoring a bill to abolish the death penalty in Ohio. The legislation, currently in committee, also has several Republican sponsors, and Antonio is optimistic about its chances. She says the effort to end capital punishment has become more urgent with the looming nitrogen bill. 

Antonio told Bolts she has spoken with O’Malley about showing restraint with the death penalty. “He definitely hears from me when I disagree with something,” she said. “I’m going to keep working on trying to get him to really shift his opinion on the death penalty for sure.”

The post In Cleveland Prosecutor’s Office, a Long Trail of Death Sentences and Wrongful Convictions appeared first on Bolts.

In December 2020, on the eve of taking the reins as the district attorney of Los Angeles County, George Gascón was up late trying to make a decision. He’d been elected weeks earlier on promises to change Los Angeles’ approach to criminal punishment, but he was hesitant on how much to shake up the system. “10, 11 o’clock at night, the night before I was being sworn in, I’m looking at two versions of what I’m going to say,” Gascón recalled in a recent interview at his office in Downtown LA. His first speech articulated a more incremental approach, but the more he looked at it, the more he became convinced that it would risk “business as usual.” 

He chose the second speech. 

The following day, Gascón announced a sweeping set of categorical, or ‘blanket’ policies, his office would adopt: no death penalty, no charging minors as adults, no life without parole sentences. Not rarely, or selectively—never, under any circumstances. Perhaps most consequentially, he vowed that prosecutors in his office would not seek enhancements, special circumstances that can add decades to someone’s sentence and affect tens of thousands of cases each year in Los Angeles County. 

Prosecutors are typically reluctant to delineate such clear-cut policies, preferring to protect the boundless discretion of their office. Even those who vow reform tend to merely promise to deprioritize certain practices without ruling anything out. But Gascón told me that it was important for him to draw clear lines in the sand, in part because he knew that he’d be walking into an office whose management team largely opposed his plans. “I wanted to make sure that this was going to be just not a bunch of political promises—this was going to be a real thing,” he said.

Nearly immediately, the new DA found himself under fire, including from staff in his office who bristled at being told not to use some of their regular tools. Almost as quickly, he announced a tweak to his enhancements policy, allowing exceptions for hate crimes and offenses against children and the elderly. And that was just the beginning. Many of the biggest inflection points of Gascón’s first term have revolved around the use of blanket policies: one court battle after his own deputies filed suit claiming that his directive to not seek enhancements violated the law, one protracted media storm involving a case that seemed to challenge the principle of never trying young people as adults, and two fizzled recall attempts by adversaries who said he was neglecting the duties of his office. 

Now, Gascón is defending his seat against 11 challengers, nearly all of whom are running to his right in the March primary. (The top two candidates will head to a November runoff unless someone clears 50 percent of the vote.) Many of his opponents are attacking the very idea that a DA should ever issue categorical policies. In fact, a number of them have contested his approach ever since 2020. The field includes four line prosecutors working in his office, several of whom are highly involved in the union that sued him and one who says she was demoted for questioning his directives; and a former attorney at the firm that filed the lawsuit.

At first glance, blanket policies might seem like an intuitive tool for reform prosecutors because they both embody a clear vision of change and help to enact that vision. “They’re actually very useful, smart policies to implementing what we care about, which is a less racist, more fair system where also we can put more resources into very, very serious cases,” said Jessica Brand, founder of the Wren Collective, a national organization that researches criminal legal policy and helps advise reform prosecutors. 

But Brand said she’s nonetheless hesitant about recommending such policies: “They’re latched onto in these hyper political ways.” Blanket directives like Gascón’s tend to become lightning rods for controversy, especially given that so much of criminal legal policy—and debate around that policy—in the U.S. is defined by the specter of extreme cases. 

One of the most indelible examples of this dynamic in modern American politics happened just across town from the Los Angeles DA’s office.

During a 1988 presidential debate held at UCLA, Democratic nominee Michael Dukakis, a lifelong opponent of the death penalty, was asked if he would change his mind about capital punishment if his own wife, Kitty, were raped and murdered. His immediate answer—that he wouldn’t, given his deeply felt principles on the matter—is widely considered to have harmed his presidential bid; it remains seared in the minds of a generation of political observers, a cautionary tale about the perils of ruling anything out when it comes to criminal punishment.

Over 30 years later, Gascón ran on the gamble that the politics of crime had changed enough for him to rule out quite a bit more than just the death penalty, and he won in 2020 after making blanket promises as part of his campaign pitch. But the ensuing years only raised the stakes of that gamble, leading the DA to hedge in certain ways and double down in others. As he embarks on a difficult reelection campaign, I wanted to understand what Gascón’s tenure has revealed about the politics of transforming prosecution, especially in a place as vast and complex as Los Angeles. How do you set about making big changes to an entrenched system without sparking so much resistance that your ambitions founder? What does it take, in other words, to dispense with business as usual?

To understand why a reform DA would insist on a blanket policy despite the political risks, you first have to understand the status quo they’re fighting against. “This is an arcane system, and it’s not going to go gently and quietly into the night,” Cynthia Roseberry, acting director for the ACLU’s Justice Division and a former public defender, told me. “We’ve got to be bold in our strokes to change it.”

For reform DAs like Gascón, blanket policies are an effort to disengage from practices that they consider simply unconscionable: outdated, racist, overly harsh, or morally dubious. Gascón cites data showing that the death penalty is riven with errors and racial bias. He points to the fact that young people sent into the adult system can spend decades in prison for a mistake they made as a teenager. And he has underscored that sentencing enhancements, a product of the tough-on-crime era, can add many years of incarceration onto whatever baseline punishment has been determined to fit the underlying crime. “Do we send somebody to prison for way beyond their natural life, or do we send them for a period of time where they may be able to redeem themselves and come back?” Gascón asked me.

Blanket policies can put clear guardrails around a DA’s charging decisions, instead of them telling the public: just trust me. If you believe that the state shouldn’t be in the business of taking a life or that young people’s developing brains leave them fundamentally unable to grasp consequences the way an adult can, there’s no sense in judiciously applying the death penalty or charging juveniles as adults, the thinking goes—it simply shouldn’t be done at all. 

“When we think about removing something like enhancements, what we’re also saying is we know that they’ve been used improperly and there’s not a way to correct them in isolation,” said Roseberry. Mona Sahaf, who runs the Vera Institute’s Reshaping Prosecution Initiative, thinks that “it’s a big opportunity to shrink the footprint of the system.” 

Reformers also make the case that prosecutors have had a key role in exacerbating mass incarceration. Discretion is the lifeblood of their trade, but historically, prosecutors have almost always used that freedom to move in one direction—towards harsher punishment, even above and beyond what the law requires. Over and over again, they come down on some people harder than others: 45 percent of people serving a life sentence in California under the Three Strikes law are Black, as Gascón’s enhancements directive noted. Maria Gonzalez, the legal clinic coordinator at Los Angeles’ Youth Justice Coalition, has a loved one doing 100 years on an enhancement case. “That life is done. It’s gone,” she told me flatly. 

Other prosecutors who say that they share Gascon’s opinions about the death penalty, or that sentencing enhancements are broken, still prefer to say they’ll assess each case on its own, rather than draw a clear line in the sand. But to organizers like Melina Abdullah, a leader of Black Lives Matter’s Los Angeles chapter, this is just a way “to not make any commitments.” 

“You can’t just make decisions on a case-by-case basis,” she told me. “You have to have a set of legal principles that you adhere to.”

After all, DAs aren’t running around trying cases themselves—rather, they oversee large offices of deputies responsible for the day-to-day work of prosecution, who can easily ignore vague principles from up top. In fact, given that the professional norms of prosecutors tilt towards punitive sentencing, reform prosecutors have found themselves undermined by staff resistant to carrying out their changes. 

Announcing blanket policies, then, is a way for reform DAs like Gascón to use the power they do have to limit the power of their own office, and to tie the hands of the vast bureaucracies they oversee. Prosecutors don’t have the ability to directly stop police from racially profiling young men of color, or to edit the penal code, or to rectify the socioeconomic inequalities that can lead to gang involvement. What they can do is order their own staff to stop using gang enhancements. 

Or can they? Less than one month after Gascón took office, his line prosecutors took him to court, contending that his enhancements directive was forcing them to break the law. Legislators passed the STEP act, which established sentencing enhancements for gang affiliation, and Californians approved a “three strikes and you’re out” sentencing scheme; the lawsuit argued it simply wasn’t in Gascón’s power to forbid his deputies from using those tools. Gascón replied that voters elected him to upend the status quo, and that his role allowed him to direct his own staff. 

In February 2021, a judge ruled that Gascón did not have the authority to bar his prosecutors from seeking enhancements for prior strikes, or serious felony charges. As long as California’s “three strikes” law was on the books, it wasn’t up to him whether to enforce it. But the judge’s decision did leave him free to bar his prosecutors from seeking other forms of enhancements in new cases. Gascón argues that this ruling wasn’t a major blow to his plans because it only affected a share of enhancement cases.

“Quite frankly, it’s a very small piece, not only of the policy, but of the work,” he told me. At that point in 2021, the bulk of his vision remained intact. 

The backlash to blanket policies is politically and geographically contingent. In red states, even the appearance of one has led to preemption or removal by state officials, meaning that DAs trying to do things differently are often forced to be a bit cagier about their plans, while prosecutors in blue states tend to have more leeway. 

In 2017, Orlando’s prosecutor, Aramis Ayala, was taken off some high-profile murder cases by the Florida governor after she announced she would never seek the death penalty. In San Francisco, meanwhile, former DA Chesa Boudin encountered comparatively tepid criticism for his ban on death penalty cases, in part because two predecessors—Gascón and Kamala Harris—had already paved the way. “It was well within the heartland of San Francisco politics,” Boudin, who now runs UC Berkeley’s Criminal Law and Justice Center, told me. 

In liberal Los Angeles, Gascón’s death penalty ban has also not been seriously contested, even though the county lacks the precedent that San Francisco had; his predecessor, Jackie Lacey, was notorious for her embrace of capital punishment, and helped make LA County one of the nation’s leading counties in handing out death sentences. But Gascón went further. By attempting to address lengthy sentences for people who commit violent crimes, he struck what has long been a third rail in reform debates, even among people who agree that mass incarceration is a problem: questioning very lengthy sentences for people who commit violent crimes. 

The U.S. has often fashioned its approach to punishment in direct reaction to especially heinous or high-profile crimes—California’s ‘three strikes’ law, for instance, was motivated by the abduction and murder of nine-year-old Polly Klaas—and these crimes have animated debates around sentencing policy in a more ambient way, too. We have no shortage of infamous cases to draw from—serial killers, mass murderers, bizarre cases like Charles Manson or the Unabomber—and these people tend to loom very large in the popular imagination, even as they represent a microscopic percentage of Americans who commit crimes. This has meant that extreme outcomes—sentences of decades or even hundreds of years—have become commonplace, far more so than the extreme offender they were initially designed for. 

Today the specter of the “worst of the worst” continues to haunt criminal legal debate, often putting politicians who favor major policy upheavals on the defensive, like Dukakis answering Bernard Shaw’s question in 1988 in front of tens of millions of Americans. This is particularly fraught within the juvenile justice system, where the increasingly popular slogan that we should treat children as children, in accordance with newer research showing that brain development continues into the mid-20s, exists alongside the possibility of truly extreme cases. 

In Sahaf’s time working with reform prosecutors at Vera, she has observed that “it’s very difficult to make an absolute pledge never to charge a child as an adult and then carry through on it, because you see these exceptions happen…children do sometimes commit really atrocious crimes.” And eventually just such a case would land on Gascón’s desk: Hannah Tubbs. 

Tubbs’s case seemed to span the gamut of aggravating factors: here was someone who had sexually assaulted a child in a restaurant bathroom stall less than a year before turning 18, who was 26 by the time she was caught and facing punishment, who had already racked up an extensive criminal record, and who mocked the victim and expressed no remorse. “Nothing is ever unique, but it was as close to unique as you could [get],” Gascón told me. But he added that there were mitigating circumstances, too. His commitment to keeping the case in the juvenile system led to internal clashes, and then public opprobrium after jailhouse recordings of calls between Tubbs and her father were leaked to Fox News. 

“This clearly shows you the dangerous aspect of the blanket policies of George Gascón,” Jonathan Hatami, a prosecutor in the DA’s office and frequent critic who’s now running against him, told the LA Times—which, along with other local media, covered the case extensively. 

Facing the biggest fracas of his tenure, Gascón announced in February 2022 that he would alter his directives on life without parole sentences and charging juveniles as adults: instead of total bans, he was establishing two committees to consider “extraordinary” cases that might merit such special circumstances. Each committee would be staffed by three senior advisors, including one who publicly stated she didn’t agree with his about-face.

This approach, his office said, would “create a different pathway for outlier cases, while simultaneously creating protections to prevent these exceptions from becoming the rule.”

These tweaks may seem minor, since “extraordinary” cases are by definition rare and since Gascón created a structured process to evaluate them. But to some, their vague quality signaled a worrisome retreat from the principles the DA had run and won on. 

For the ACLU’s Roseberry and local advocates like those at the Youth Justice Coalition, even one minor charged as an adult is one too many. “The idea that we would approach them in any respect as irredeemable is a frightening prospect,” said Roseberry. “These children come to us having been shaped by circumstances and environments that are beyond their control.”

Other reform DAs have tried for a similar balance as Gascón: Boudin’s sentencing directive in San Francisco, for instance, created a presumption against enhancements but left room for them in “extraordinary circumstances,” as long as he or a deputy signed off. “From a legal standpoint, we were on stronger ground by writing into the policy discretion to make exceptions,” he told me. (Boudin did maintain a blanket prohibition against charging juveniles as adults throughout his two and a half years in office.) 

Still, Youth Justice Coalition communications director Emilio Zapién stressed that using edge cases to guide criminal legal policy making is destructive to the chances of the young people the Youth Justice Coalition works with. “For every really horrific case, like the one you’re talking about, the Tubbs case, there are 15 to 20 others [that show] transformation,” he told me. 

Zapién added that he found the whole debate around Tubbs to be cynical: “The folks that are arguing for more criminalization and incarceration of young people of color after the mainstream media sensationalizes one case as a political tactic… those folks already had those beliefs before.” 

At the time of the Tubbs case, Gascón had already weathered one recall campaign motivated by aspects of his categorical policies. One of the public faces of the recall was a woman, Desiree Andrade, whose son Julian had been brutally murdered. Under Lacey, his killers faced the death penalty or life without parole; once Gascón took office, those options were off the table. The words “Gascon [sic] REFUSES to prosecute juveniles as adults under any circumstances, even rape, murder or other heinous crimes, even if days shy of turning 18” were front and center on the campaign’s website. 

That recall attempt imploded after organizers failed to garner enough money or signatures–but they swore they’d be back, and some recall proponents took up the Tubbs case as a rallying cry. The second recall campaign that resulted also fizzled out about a year later. Ironically, it’s been the intensity of the opposition to Gascón, more than anything else, that has vindicated what many of his allies have said all along: prosecution is political.

Now the energy behind those efforts has been channeled into the upcoming election, with a number of Gascón’s loudest critics and recall supporters returning to run against him.

Nathan Hochman, a former Republican candidate for California attorney general, writes on his campaign website that Gascón’s blanket directives “demonstrate distrust in his prosecutors” and promises to restore prosecutorial discretion. His website names the elimination of blanket policies as a crucial component in his “blueprint for justice.” 

John McKinney, a prosecutor in the DA’s office, said at an October debate that he’d “repeal and replace” every directive Gascón announced on his inauguration day. Hatami, the frequent critic, has said that “blanket policies should all be revoked,” telling Los Angeles Daily News “I believe in discretion.” Eric Siddall, another prosecutor in Gascón’s office and the former vice president of the deputy DA union, has also vowed to make the issues targeted by most of Gascón’s blanket policies subject to a “case-by-case analysis” instead. Maria Ramirez, yet another prosecutor in the office, has used similar language. 

I reached out to the campaigns of a handful of the candidates for their thoughts on blanket policies. None responded by the article’s deadline. Jeff Chemerinsky’s campaign reached out after publication to say that Chemerinsky, a former federal prosecutor, would never seek the death penalty as DA, but that he would eschew other blanket directives.

Siddall, who has also insisted he is not opposed to progressive reform while criticizing Gascón for taking a “defendant-centered approach,” has made the same key concession to Gascón’s model, vowing to forgo the death penalty. Other candidates, meanwhile, have not ruled it out. It may not be to his advantage, but Gascón’s blanket policies set the terms of the debate.

Gascón has made more than a few political calculations of his own over his three years in office. As he approaches his first reelection test in March, he has kept in place some of his initial blanket directives, like his commitment to never seek the death penalty. During the tenure of his predecessor Lacey, 22 people were sentenced to death in LA, all of them people of color, but Gascón has never tried. His administration has also worked to resentence people who are already on death row to life without parole; his office told me it has secured that change for 29 people as of this week.

Meanwhile, the DA has altered some directives to define a process for considering “exceptional” cases, while preserving the central presumption of the policy. He has walked farther back from others, maintaining the goal of avoiding certain enhancements but without clear guidelines. And he’s been barred by the courts from pursuing still others. 

This convoluted landscape reflects Gascón’s concessions to his critics from the right, to be sure. But his case to progressives has also evolved: His record shows, he argues, that blanket policies altered by carve-outs can also accomplish his decarceral goals. “Do I think this has made a difference?” he asked me when we spoke. “I think it’s made a tremendous difference.”

Gascón softened his blanket prohibition against charging minors as adults, for instance, but this has not opened the floodgates to adult prosecutions.

As a result of his original policy, Gascón said that hundreds of teenagers per year who might otherwise have been sent to an adult prison are now being treated in the juvenile system. To Gonzalez, who spends her days in court advocating for young people on behalf of the Youth Justice Coalition, the change has been palpable. 

“LA County has made so much progress on helping our youth,” she said. “I’ve seen young people be under diversion and continue to go to school, graduate from school. Last year, we had two graduates that could have easily just been in a cell.” (Like her colleague Zapien, Gonzalez disagrees with Gascón’s decision to modify this policy).

Since Gascón modified his blanket prohibition in February 2022, the Juvenile Alternative Charging Committee had recommended that ten cases be transferred to adult court, according to the DA’s office. In the first transfer hearing to take place, the judge, J. Christopher Smith, actually overrode the committee, ruling that the teenage defendant wasn’t beyond rehabilitation and noting that he had cognitive deficiencies and a history of childhood abuse. The ruling echoed Gascón’s initial absolute commitment to the possibility of personal transformation even in cases where a young defendant had done something heinous; in doing so, Smith brought into sharper relief Gascón’s decision to retreat from that principle. 

Gascón told me that he actually agreed with the judge’s decision. But he also defended his office’s charging committee, saying they may have been influenced by the gravity of the crime, a double murder, and invoking the value of outsourcing these evaluations to an independent body. “I gave the committees full freedom to decide,” he told me. 

Separately, he called it “affirming” that state law had nearly caught up to his December 2020 blanket policy: In 2022, the California legislature raised the bar to try minors as adults, reflecting the changing consensus on juvenile culpability. (Gascón wrote a letter in support of that effort).  

Similarly, Gascón set up a charging committee tasked with determining whether a case merits a possible sentence of life without parole, and this committee has given prosecutors the go-ahead to seek that sentence some 23 times since February 2022, according to information gathered on the DA’s website. The office has applied a “special circumstances” enhancement, which requires a sentence of life without parole in the event of a conviction, in two recent high-profile and especially gruesome cases: a man who allegedly serially targeted and killed homeless people, and the son of a famous Hollywood agent who is accused of killing and dismembering his wife and her elderly parents. 

Gascón may have gotten what he wanted out of these cases: They are being widely covered in local media, but seemingly no one has invoked them in order to criticize the DA for being soft on crime. By opening the door to some life without parole sentence in high-profile instances, the DA had perhaps freed himself up to avoid that sentence in the vast majority of cases with far less scrutiny or blowback.

But just how far can he take this approach? The judge who ruled on the deputy prosecutors’ lawsuit in 2021 gave Gascón carte blanche to maintain his initial blanket policy barring other sorts of new enhancements—special allegations that would add on extra time for gang involvement or the presence of a weapon, for example. The DA’s office says it has maintained a blanket prohibition on gang enhancements. 

But on gun enhancements, Gascón has retreated from his initial categorical policy in a murkier way. In November, he told me that his office had been adding gun enhancements on a case-by-case basis, allowing line prosecutors to seek them if they get management approval.  

“We are selectively using those enhancements but it’s being done, again, much more thoughtfully,” Gascón said. 

I later asked Gascón’s chief of staff, Tiffiny Blacknell, why Gascón retreated from this blanket policy voluntarily. “It’s reasonable that there should be some exceptions to some of these directives, with the exception of the death penalty,” she said, adding that the DA had over time erected a management structure that he trusted to carry out his vision. “We’re using a scalpel, not a sledgehammer.” The office does not have a written policy governing when it’s appropriate for prosecutors to seek these enhancements. Blacknell said bureau directors make the final decision based on factors such as the severity of the crime and past criminal history. 

On this front at least, the DA’s current stance sounds a lot more like the “case-by-case” rhetoric of his challengers. This risks a return to the starting point that local progressives hoped to get away from: just trust me, I’m the one who can use this tool wisely. 

And that argument, Gonzalez said, wouldn’t slide with the people who elected him in the first place. “The community is bigger than the pushback he’s getting right now,” she told me. “The community is gonna stand up and say, ‘I don’t believe you.’”

Gascón says it’s easy to distinguish his commitment to reform from opponents who only pay lip service to it during campaign season, pointing to his record in office.

For organizers who work closely on policing, prisons, and sentencing in Los Angeles, there is a continuous need to decide whether they buy the DA’s revised case for change. Are his carve-outs a strategically savvy response to the backlash, or are they a retreat to punitive conventions? What’s the line between preserving some space for extraordinary cases and mirroring old paradigms of boundless prosecutorial discretion? In that ongoing assessment, many are balancing their frustration over Gascón’s walkbacks with an awareness of what he’s up against—what it takes to change an intractable system under the ever-present specter of Michael Dukakis. 

“I’m never a fan of a prosecutor because I think the system is fundamentally set up against Black and brown and Indigenous and poor people,” Abdullah told me. But she noted that the DA has pursued goals she sees as critical, including prosecuting law enforcement officers who engage in violence or corruption. “I think what he’s demonstrated is that chipping away at unjust systems can be helpful as we work towards transformation.” Gascón is walking a tightrope, she said: “How do you hold on to the principles that you say you believe in without losing your seat? And how do you balance the two?”

“Someone like me, I don’t believe in life without the possibility of parole. I don’t believe in ever trying a child as an adult,” Abdullah said. “But again, I’m not running for prosecutor.” 

This article has been updated with a response, received after publication, from the campaign of Jeff Chemerinsky on his policy views.

The post Under the Shadow of the Extreme Case appeared first on Bolts.

And then, just as quickly, it slammed shut: Louisiana’s attorney general and the leading candidate in the race for governor, Jeff Landry, filed a lawsuit against the Board of Pardons and Parole, seeking to disqualify the petitions; he then fired the lawyer the Board hired to represent it in the suit, and instead installed an attorney who has represented him in the past. What followed over the next few months, as Edwards’s days in office dwindled to zero, has amounted to an agonizing bureaucratic back-and-forth: the Board, following Landry’s suit, has repeatedly declined to grant the prisoners full clemency hearings, instead scheduling brief administrative reviews for fewer than half of them. 

One of the prisoners, Henri Broadway, has maintained his innocence in the 1993 murder of police officer Betty Smothers. During his review, his defense team was cut off early, while the opposition received 10 extra minutes to speak. “It’s very, very discouraging,” Broadway’s lawyer, Sarah Ottinger, told Bolts. “Henri Broadway is innocent.” 

“It was headed towards fair and full consideration of these cases,” said Cecelia Kappel, whose organization, the Capital Appeals Project, coordinated the petitions. “It took, I think, a huge effort by Jeff Landry and the DAs association to stop this.” Ultimately, not a single person was granted clemency—or even a full hearing. 

In November, after a dismal voter turnout, Landry won the election. His inauguration as governor earlier this week marked a stark transition for the state.

For the people who fight to change Louisiana’s penal system—historically brutal, harsh, and deadly even compared to the rest of the US—the past eight years under Edwards were a time of cautious optimism. A rare Democratic leader in the Deep South, he worked to pass landmark, bipartisan criminal justice reform legislation in 2017, expanded Medicaid to prisoners, vetoed harsh criminal justice laws passed by the Republican-dominated legislature, and ramped up commutations, especially over the last year. With Edwards as a “backstop,” Promise of Justice Initiative organizer Katie Hunter-Lowrey told Bolts, “it felt for a while that Louisiana had been protected from some of the more extreme actions being taken across the country.”

Landry, meanwhile, has signaled that he will be a very different sort of leader—a return to Louisiana’s harsh status quo on criminal justice, but with a heightened level of bombast. A Trump ally and product of the Tea Party, he embodies the new Republican party’s commitment to the culture war and antipathy toward compromise. He has repeatedly targeted the state’s majority Black cities, supported harsher criminal laws, and indicated his intention to roll back Edwards’ landmark reforms. Empowered with a GOP supermajority in both houses of the legislature, Landry is likely to be able to carry out his agenda without much resistance. “Louisiana will continue to stay at the top of the prison incarceration list, and we will not be any safer or any more prosperous for it,” said Sarah Omojola, the director of Vera Institute of Justice’s New Orleans office.

But advocates are refusing despair, opting instead to view this as a signal to redouble their organizing efforts, especially to communities that aren’t already mobilized but might recoil from the hard-line policies that Landry is poised to enact. “These [low voter] turnouts were a wake up call,” said Reverend Alexis Anderson, the co-founder of the East Baton Rouge Parish Prison Reform Coalition, which works to shed light on the local jail death crisis. 

Anderson told Bolts she views this moment as an opportunity—nowhere to go but up. “If we don’t, and we basically go hide in a corner somewhere, then we’re ceding something that doesn’t make any sense,” she said. “We are always one election away from changing things.”

A moderate operating amidst a sea of red, outgoing governor Edwards at times moved too carefully for some onlookers, a frustration recently on display after his refusal to use his power to unilaterally direct the Board of Pardons to hold full hearings for the death row petitioners. But his reforms have made a difference: Louisiana may still be the “prison capital of the world,” with the highest per capita rate of incarceration on the entire planet, but its incarcerated population has gone down some 24 percent during Edwards’s time in office. 

These improvements are largely owing to the Justice Reinvestment Initiative, a landmark package of 10 criminal justice bills that Edwards and the legislature worked to pass in 2017. In the six years since its passage, the reforms have reduced the number of people convicted of nonviolent crimes in prison, funded victims’ support and reentry services that reduce recidivism, and shrunk the parole and probation population. But advocates now worry this progress could be undone under the new governor. Last year, Landry supported the creation of a task force on violent crime designed to review the effects of the reform package, as well as another 2016 law that moved 17 year olds back into the juvenile justice system. He has already announced a special legislative session on crime, where it is widely assumed he will support repealing the laws that made up the justice initiative. The special session could convene as soon as February.

Anderson said she’s especially troubled by the thought that Landry might roll back Louisiana’s scant juvenile justice reforms. (Last year, he vigorously supported a bill that would have made teenagers’ criminal records public, but only for teenagers who lived in three of the state’s majority-Black parishes, including East Baton Rouge.) “Primarily African American boys are going to be put into harm’s way in the worst kind of way,” Anderson said. “You just can’t unring that bell, the harm that’s going to be done.” 

Meanwhile, Landry has already assembled a special committee on New Orleans, an unusual move. It’s an indication that he might seek to use his new office to preempt local control and try to ramp up law enforcement presence in the city, both things he also did as Attorney General. 

In response to Landry’s proposals, Omojola told Bolts that Vera will be going back to the coalition that succeeded in winning those landmark 2017 reforms in the first place— “reconvening that dream team of people to figure out, how do we both protect the progress we’ve made and also continue to move forward?” she said. “Those reforms were just a first step. Much, much more needs to be done.” 

While Louisiana’s GOP trifecta and a Republican supermajority in the legislature will make it difficult for organizers to stop new bills from becoming law, they hope that they can get people into the streets and continue to organize on the local level as well. “The race to the bottom isn’t just at the governor’s mansion. It’s in the legislature but it’s also in some of these localized policymakers,” said Anderson, highlighting the need for advocates in Louisiana’s cities to organize with rural populations as well. 

Omojola stressed the importance of national organizations like Vera partnering with local membership groups like Louisiana Survivors for Reform, which Hunter-Lowrey coordinates. The coalition’s work organizing with people who might not already be inclined towards criminal justice transformation could be a useful strategic template. This year, for example, they’ve worked with family members of victims in two of the death row cases. “So often, this tough-on-crime legislation is passed in the name of victims and survivors. But for the past few years, [the Louisiana Survivors for Reform coalition] has showed that there are survivors who are saying, ‘Actually, that’s not for me,’” Hunter-Lowrey told Bolts. “The work that we’re doing to provide a non-judgmental space for survivors and victims’ families where advocacy is explicitly part of our healing—it has made a difference.” 

“It’s going to continue to take some time, but I think that path that we’re laying brick by brick is still the right one,” she added.

Hunter-Lowrey’s colleague at Promise of Justice Initiative, Michael Cahoon, has been organizing with faith leaders across the state for several years, most recently around the campaign to ask for mercy for those on death row. “We activated a lot of folks who hadn’t been active,” he said. “We’re definitely hoping to continue that sense of urgency and that sense of moral imperative in the next year.” 

“As we move forward into a new political reality,” Cahoon went on, “It’s also about presenting an affirmative vision for what safety looks like, beyond our over-reliance on mass incarceration. “And I think that’s going to be the work of the next year, four years, eight years, 10 years.” 

For Anderson, it all comes down to voter mobilization. “There are things that any governor can do that can be problematic,” she told Bolts. “When the voters simply do not show up, do not flood the legislature, do not call, there’s no accountability.” She pointed to the raft of elections coming up this year. In 2024, Louisiana will select a new state supreme court justice and nine intermediate appellate court judges, send six representatives to the U.S. House, and choose a public services commissioner. The state’s three biggest parishes will hold school board elections. Even party elections can make a difference: Norris Henderson, a formerly incarcerated organizer, is running for Democratic State Central Committee. 

The Louisiana Parole Project has a practice of posting to social media each time a client’s sentence is commuted. Most of the photos depict older Black men, smiling broadly, with Angola’s gates blurred in the background. This year, the images have proliferated: despite his reluctance to move on the death row clemency petitions, Edwards did commute the sentences of at least 123 prisoners, the vast majority of them lifers. Though that’s just a small percentage of those serving life sentences in the state, it’s still the highest number of commutations of any governor since the 1980s. “For a lot of those families, the only way they would have seen their loved one was in a box when they sent him home,” Anderson said. 

But if Landry is anything like his Republican predecessor, relief will be scarce in the coming years: Bobby Jindal commuted just three people’s sentences during his entire eight years in office.

Landry’s election has not only dashed hopes of commutation for prisoners on death row or anywhere else—it has also raised the very real possibility that executions will resume in the state. Louisiana last put a man to death in 2010, only after he waived his right to keep fighting his case and asked the state to end his life; there have been no contested executions in the state since 2002. But Landry has long defended capital punishment. In 2018, he criticized Edwards for not doing more to resume executions and argued that the state should consider older methods of execution, like hanging and firing squads.

Cecelia Kappel, the capital defense lawyer, is worried that the new governor might try to do what he can to jumpstart executions. But she’s also motivated by how the clemency battle exposed deep flaws in the way Louisiana doles out death sentences and by how much the public’s support for capital punishment has eroded in recent years. In August, she succeeded in getting one of her clients an entirely new trial. “We’re just going to keep moving forward,” she told Bolts. “And we shall see what the future brings, but I think that we will see more exonerations and we will certainly see more reversals in the next few years.”

The post Louisiana Organizers Brace for Landry appeared first on Bolts.

Every night one of his neighbors was scheduled to be executed by the state of North Carolina, Glen Edward “Ed” Chapman would look up at the window slit in his cell and say to the black sky, “I’ll see you again.”

Saying goodbye was hard. Chapman and his peers who were also condemned to die formed a small community within the prison system. And whenever the state executed someone, that community would shrink by one member.

“I was close to those guys on death row,” Chapman said. “They were like family.”

One of the people killed while Chapman was on death row was Ernest Basden, sentenced to death in 1993 in a murder-for-hire scheme. After he got to prison, Basden stopped using alcohol and drugs and found God. His family had traveled around the state to build public pressure to convince then-Governor Mike Easley to grant Basden clemency and spare his life.

They failed. One cold winter evening, Basden’s family huddled in the mailroom of Central Prison in Raleigh to say goodbye, able to freely talk with and touch him in the last hours of his life.

“My mom had not hugged him in 10 years,” said Kristin Stapleford, Basden’s niece.

Basden was executed in the early morning of Dec. 6, 2002.

More than 20 years later, Chapman is on the other side of the bars, having been exonerated and released from prison, and is now joining Basden’s family in again urging a North Carolina governor to spare the lives of the men and women sentenced to death.

“We promised him that we would not give up the fight, that we would fight to see the death penalty abolished in North Carolina,” Stapleford said.

Stapleford and Chapman are members of a coalition of more than 20 social and criminal justice organizations and religious leaders calling on Governor Roy Cooper, a Democrat, to commute the sentences of the people on North Carolina’s death row to prison terms before he leaves office at the end of 2024. A Bolts and NC Newsline analysis shows there are currently 136 people on this death row—the fifth-largest number in the U.S.—whose lives would be spared if Cooper were to act. 

Commutation is one form of clemency, a broad power most U.S. governors have to change a person’s criminal conviction or prison sentence, most often due to individual circumstances of a person’s incarceration; whether they were convicted as a youth, for example. Former North Carolina Governor Terry Sanford, who held the office from 1961 to 1965, saw his clemency power as a form of grace.

“It falls to the governor to blend mercy with justice, as best he can, involving human as well as legal considerations, in the light of all circumstances after the passage of time, but before justice is allowed to overrun mercy in the name of the power of the state,” Sanford wrote in 1961, after shortening the sentences of 29 prisoners through executive clemency.

But what Cooper is being asked to do now is much broader.

This coalition of activists is calling on him to commute death sentences as an act of racial justice. In North Carolina—a state where people were legally enslaved for more than 100 years—just over 22 percent of residents are Black, but over half of those on death row are Black or African American, according to figures provided to Bolts and NC Newsline through a public records request. Of the dozen people who have been sentenced to death in North Carolina and later found innocent, 11 are people of color.

Advocates are now hoping Cooper will offer clemency for the 136 people on death row en masse, regardless of the circumstances of the crimes of which they are convicted, because of the injustices of the death penalty and North Carolina’s criminal legal system at large.

Granting clemency would not mean that the people on death row would be released from prison, nor would it mean the abolition of the death penalty going forward. The state constitution only grants the governor discretion to shorten a sentence as he sees fit. Cooper could, for instance, commute the sentences to life without the possibility of parole. Or, he could sentence them to life and leave the possibility of parole open. 

It’s similar to a petition made by advocates in Louisiana, who earlier this year asked Governor John Bel Edwards to commute the sentences of more than 50 people on that state’s death row. So far this mass request has been blocked by the Louisiana Board of Pardons. 

While North Carolina governors frequently granted clemency in the late 1970s until 2000, commutations became rare starting in 2001.

Executions have slowed as well—North Carolina hasn’t executed anyone since 2006, and North Carolina’s district attorneys pursue the death penalty at a much lower rate than in years past. But with Republicans controlling the state supreme court and holding supermajorities in the House and Senate, many anti-death penalty advocates are concerned that they could restart, especially if a Republican moves into the executive mansion.

The death penalty has been raised as a talking point in early debates among Republican gubernatorial candidates and has been an issue in previous elections as well. In 2017, top Republican legislators demanded Cooper and Attorney General Josh Stein, a Democrat now running for governor, resume executions after four prisoners at Pasquotank Correctional Institution were charged with killing four employees in a failed escape attempt. 

Two of those four men have since been sentenced to death.

A new governor couldn’t simply sign a slip of paper and reopen the execution chamber since the courts are the reason for the pause in executions. There are ongoing legal battles over the application of the Racial Justice Act, landmark legislation that gave people an opportunity to get off death row if they could prove racial discrimination had played a role in their death sentence. Democrats passed that bill in 2009, Republicans repealed it in 2013. Then, when Democrats controlled the state supreme court in 2020, it struck down the retroactive repeal of the law, allowing the claims that had already been filed to continue to play out through the present day. 

But conservatives now control the state supreme court, and advocates worry they could revisit that ruling, clearing a path to resume executions. There are also still legal questions about North Carolina’s protocols for using lethal injection drugs to carry out executions, though advocates worry North Carolina Republicans could find a way around that, as they have tried to in South Carolina and Alabama. 

Republican control of the other branches of state government has given those opposed to the death penalty a sense of urgency. At a recent rally, Kristie Puckett, the senior project manager of Forward Justice, told a crowd of around 200 supporters that Cooper was their last hope because of North Carolina’s current political climate.

“We can’t trust our legislature. We can’t trust the courts,” she said. “And so we are forced to rely on Governor Cooper.”

The coalition has staged marches, written letters and met with the governor’s staff. They’ve held film screenings on the “Racist Roots” of North Carolina’s death penalty and handed out postcards so residents can write Cooper directly. Soon, they’ll post billboards and travel to communities across the state to build support for the campaign as it enters its final year before Cooper leaves office.

“Our commutations campaign is very focused on 2024 because we have a sense of urgency that executions could resume, as they did in the federal system,” said Noel Nickle, executive director of the North Carolina Coalition for Alternatives to the Death Penalty. “I am concerned that the political climate of our state has become more entrenched in policies and practices that would lead to executions resuming.”

Cooper, who has had a mixed record on commutations, has been pressured for years by criminal justice reformers, many of whom have gathered outside the governor’s mansion annually calling on him to use his clemency powers. Cooper didn’t grant any commutation until March 2022—two years into his second term—shortening the prison terms of three people who committed crimes when they were children. In December 2022, after three weeks of protests outside his home, Cooper commuted the sentences of six more people.

So far, Cooper has made no public comment on the 136 currently on death row. In 2017, after the murders at the prison in Pasquotank, a spokesperson for the governor said Cooper supported the death penalty and had a “long history of upholding it” during his 16 years as attorney general. The governor’s spokesperson did not answer recent questions from Bolts and NC Newsline on whether he still supports the death penalty or if he was considering commuting North Carolina’s death sentences.

Puckett credited the annual campaign for getting Cooper to issue commutations last year. She doesn’t think he would have exercised clemency otherwise.

“That’s the only reason he’s doing something: because he’s forced to do something,” she said.

A lasting legacy

The North Carolina governor’s office is weak by design but clemency is one area where the executive branch has broad authority to commute prison sentences without approval from a parole board.

“This is a rare policy area where the governor has power, can exercise it, and doesn’t need to ask anyone else for permission,” said Christopher Cooper, a professor of political science at Western Carolina University (who has no relation to the governor).

Even so, it would be novel for a Democratic governor—especially in the South—to use their power to unilaterally empty their state’s death row. Louisiana’s John Bel Edwards, tried to grant the mass clemency request he received before he left office, but he was ultimately thwarted by the state board of pardons.

Cooper has already laid the groundwork for clemency on a systemic level. In June 2020, just after a white Minneapolis police officer murdered George Floyd, the governor established a Task Force for Racial Equity in Criminal Justice that he asked to make recommendations for ending racial disparities in the criminal justice system. One of the subjects they tackled was the death penalty.

Ken Rose, who was a senior attorney at the Durham-based Center for Death Penalty Litigation for 35 years before retiring in 2017, gave a presentation to members of the task force in November 2020 showing two strikingly similar maps of the United States: One showing where Black people were lynched across the nation between 1883 and 1940, an another marking the execution of Black defendants between 1972 and 2020. 

Later that year, the task force published a report noting the death penalty has a “relationship with white supremacy.” They did not recommend abolishing capital punishment, but they did propose ways to narrow its use. 

The task force also identified commutation as a remedy to address injustice, suggesting officials examine commuting sentences of people sentenced to death before July 2001, when North Carolina had a “quasi-mandatory” death penalty law that forced prosecutors to seek a death sentence in capital cases. More than two thirds of the people on the state’s death row are there because of that law, according to Rose.

“You have a lot of people on death row, still on death row, who wouldn’t be there if DAs had a choice for pleading cases to life,” he said.

Following another recommendation of the task force, Cooper created the Juvenile Sentence Review Board in 2021, which reviewed the sentences of people who committed crimes as children and recommended suitable applicants for clemency. Of the nine commutations Cooper granted in 2022, five were based on recommendations from that board. In a press release, his office acknowledged science showing children’s brains are different than adults’, and that state and federal laws treat minors differently in sentencing in criminal cases.

“As people become adults, they can change, turn their lives around, and engage as productive members of society,” Cooper said in a press release.

Kerwin Pittman, one of the members of the task force, thinks Cooper’s own political ambitions could make him reticent to use clemency more broadly. At 66 years old, he is a relatively young politician and could have decades left in public office.

“To just issue a blanket clemency to everybody, or commute everybody, he may not feel that is in his best interest,” Pittman said. “I’m sure he doesn’t want to make a misstep that’s going to come back and bite him.”

But this reluctance is frustrating to advocates who see Cooper as wasting his authority to commute sentences as he sees fit. 

“Why do you work so hard and be so shrewd to get to the top just to piss the power away?” Puckett asked. 

The exonerees

More than 20 organizations from across the state and country are working with the North Carolina Coalition for Alternatives to the Death Penalty to persuade Cooper to use his clemency powers. Members of the European Union also came to Raleigh in November to meet with Cooper and Attorney General Stein to talk about the death penalty.

But it is exonerees like Alfred Rivera and Ed Chapman who are leading the charge—men who intimately know the hopelessness of death row but escaped it once they proved they should have never been convicted. 

Rivera is both a victim of violence and wrongful incarceration. After his father was killed in a robbery when Rivera was a toddler, his mother, left alone with five children to care for, started drinking. She died from cirrhosis of the liver seven years after her husband passed away. 

“This is the toll that it took on her,” Rivera said.

Two decades later, a jury sent Rivera to death row, convicting him for murder. But he was exonerated in two years, after the state supreme court ruled he should get a new trial because jurors hadn’t heard evidence suggesting he’d been framed. 

Chapman, meanwhile, spent 14 years on North Carolina’s death row before being exonerated in 2008 after a judge ordered a new trial and a district attorney dropped the charges. He had been sentenced to death for two murders he didn’t commit. There were serious issues with the investigation; police had withheld evidence, and a detective later faced perjury charges for lying on the stand.

Chapman struggled after he came home. He lost a job, isolated himself and used drugs and alcohol to cope. He moved to Florida, staying in a spate of recovery houses before sleeping on the streets for about a year. 

He felt guilty about how he was living, like he was wasting the second chance he’d been given. “I let those people down that fought for me,” he said.

The guilt, shame and remorse compelled Chapman to join the commutation campaign after he moved to Durham in 2022. Now he is fighting for a cause bigger than himself.

“I’m trying to be better than I was before,” he said.

On Aug. 19, 2023, almost 17 years to the day since North Carolina’s last execution, Chapman and the coalition met at Pullen Memorial Baptist Church and marched more than a mile to Central Prison to honor those executed there.

The crowd of roughly 200 held a vigil to remember the 43 people executed by the state since 1984. Dozens of people held signs with the names of those who were killed in the execution chamber within the prison behind them. They also called for an end to death row, chanting at cars driving past them on Western Boulevard.

It was the first time Chapman had been back at the prison since getting off death row. He got chills standing outside, knowing what it was like to live on the other side of the metal doors, behind the barbed wire. But he found strength standing beside death penalty abolition advocates and people like Rivera, those sentenced to death for something they didn’t do.

“I felt that the cause for me being there outweighed my anxiety,” Chapman said.

Innocent people like Chapman and Rivera are easy cases to make to the public. It is harder—and potentially poses a greater political risk—to show grace to those who did their crimes.

Rose has represented many people on death row. He’s found that those individuals can be caring and selfless, thoughtful and resilient. They can also struggle under the weight of the mental illness and the trauma they’ve endured. 

“I look at them differently because I’ve gotten to know them,” Rose said. “I think people can do really terrible things. I think people can do monstrous things. But I do not think that that makes them a monster.”

That is a sentiment shared by Lynda Simmons, another member of the commutations coalition. Simmons’ son Brian was murdered by a teenager named James Moore, in 2004. Simmons struggled for years with relentless waves of grief over Brian’s death. But in time, trying to make sense of a senseless act, she connected with Moore, who wound up serving 15 years for second-degree murder. The two traded letters, helping one another process the trauma and grief they’d both endured. 

As they were communicating through the mail, Simmons was also doing restorative justice work with people on death row. She’d share her story with the men at Central Prison, helping those sentenced to death connect with someone who had lost a loved one to an act of violence. There, working with men like Moore who had gone to prison when they were teenagers, she could see that Moore had done something terrible, but that action didn’t define his entire humanity. 

“Listening to them, I knew that when James murdered my son, that’s what he did,” Simmons said. “I believe with everything in me, that’s not who he was.”

Simmons has always been against the death penalty, but that belief was crystallized when she went to Moore’s sentencing hearing in 2005. When she walked into the courtroom and saw Brian and Moore’s friends and family on opposite sides, she saw the impact of the shooting echoing across generations and familial lines, lives irrevocably changed by a single violent act.

“I knew that they were victims, too,” Simmons said. “They didn’t shoot my son. And I don’t believe that they raised James to shoot my son.”

“I do believe that human beings are able to change,” she continued. “And when we execute people, we rob them of the chance to change.”

Politics vs. reality

Members of the North Carolina Republican Party have long campaigned on their support of the death penalty.

In 2010, the State Republican Party sent out a mailer slamming Majority Leader Hugh Holliman, a Democrat whose teenage daughter was raped and murdered, as a “Criminal Coddler” for helping pass the Racial Justice Act, legislation that offered people a chance to get off death row—but not, as the flier erroneously claimed, out of prison—if they could prove racial discrimination had affected their charging or sentencing. 

The front of the flier read: “Meet your new neighbors. You’re not going to like them very much.”

On the back were mugshots of two men sentenced to death: Wayne Laws and Henry McCollum. 

McCollum did eventually get out of prison, not because of the Racial Justice Act but because he was innocent, like Chapman and Rivera. 

Public support for the death penalty has declined since its peak in 1994, when 80 percent of Americans said they were in favor of capital punishment, and has been on the decline ever since. Now, just over half of Americans support the death penalty.

But in 2010, North Carolina’s politicking over capital punishment worked: Holliman lost the election, as did other Democrats targeted for their support of the Racial Justice Act. Rose said it was impossible to determine whether the misleading flier swung the elections, but it doesn’t change the fact that it was a politically salient issue at the time.

“There was a lot of political use of the death penalty for a long, long time, in a way that arguably shaped elections,” said Rose.

Today, the exonerations of people like Rivera, Chapman and McCollum are eroding public support for the death penalty further, said Rose. But that doesn’t mean Republican politicians won’t bring it up when it is to their political benefit. It resurfaced in 2017 because of the prison escapes, and has been mentioned this election cycle. 

During the first Republican gubernatorial debate, one candidate called for resuming executions under the death penalty. Lawyer and businessman Bill Graham polled second in the governor’s race a few weeks after releasing an ad advocating for the death penalty for drug dealers and human traffickers. (He still trailed the Republican frontrunner, Lt. Gov. Mark Robinson, and 42 percent of respondents were undecided, but the director of the Meredith Poll told WRAL the ads seemed to be helping Graham.)

“As a prosecutor, I went after violent criminals,” Graham said in the ad. “As governor, I’ll put ‘em in jail or in the ground.”

The Republican-controlled state supreme court has also shown a willingness to overturn precedents set by previous Democratic majorities. Earlier this year they issued new rulings on partisan gerrymandering and the state’s voter ID law, reversing Supreme Court opinions written in 2022, when Democrats were in control.

“If you were an ordinary court and you were honoring precedent and you were trying to build on that precedent and navigate that precedent, then they have a long, long way to go before they restart executions,” Rose said. “But if what you wanted to do is resume executions and kill the people that are currently on death row, you could do that, but you’d have to ignore the precedent.”

But the politics of the death penalty are often divorced from reality. The most common outcome of a death sentence in North Carolina isn’t an execution, but a long process of appeals that leads to a reversal of a sentence, said Frank Baumgartner, a political science professor at The University of North Carolina at Chapel Hill and a national expert on the death penalty.

“These things are reversed not because somebody put a paperclip on the wrong side of the paper,” Baumgartner said. “They’re reversed because evidence was withheld or because improper instructions were given to the jury, or, you know, something serious.”

Baumgartner maintains an internal database on capital punishment in North Carolina. According to his figures, 411 people have received death sentences since 1976; 190 of them, or 46 percent have been overturned.

Nationally, more than 8,500 people have been sentenced to death since 1972, Baumgartner said, wondering, “What are the odds that every one of them is guilty as charged?”

On death row, community

To live on North Carolina’s death row is to be constantly reminded of one’s mortality. The men housed on death row in Central Prison in Raleigh, can spend years, decades, entire generations together in their communal pod. Most of the people on death row have been there for 20 or 30 years. They grow old together; sometimes they die of natural causes. (There are two women on death row, incarcerated at a different prison.)

“Our memories of the dead become death row lore, significant to us, living on in our hearts and minds and dreams. We live together, die together, mourn together, and remember,” said Lyle May, who has been on death row since 1999.

That quote is included in “Bone Orchard: Reflections on Life Under Sentence of Death,” a book written by one of May’s peers, George Wilkerson, who was sentenced to death in 2006. The book, co-written with Robert Johnson, a professor of justice, law and criminology at American University, is a firsthand account of life on North Carolina’s death row. 

Most states keep those on death row in segregation, meaning the incarcerated are locked in their cells most of their days, for decades, until they win their appeals, die or are executed. But North Carolina’s death row is unusual in that it houses condemned people together. The consistent group setting makes people with death sentences in the state particularly suitable for commutation, Johnson argued, saying they have had time to develop social and emotional skills since they spend so much time out of their cells.

“You don’t get the feeling of a pressure cooker on North Carolina’s death row,” Johnson told Bolts and Newsline. “There’s the overshadowing threat of death, but there’s a lot of community.”

There are risks to the incarcerated if their death sentences are commuted. Breaking up the community established on death row, for one. There are also implications for their appeals. People on death row in North Carolina are entitled to attorneys in appellate proceedings. Plus, Johnson said he thinks people facing death sentences typically get more attention on their cases from criminal justice reformers and the media, compared to people serving life. 

“That is definitely a valid concern, them losing legal remedies if granted a commutation,” said Pittman, a member of the racial equity task force. “They could lose access to having automatic counsel in the appellate courts, as well as if somebody is on the row and somebody is innocent, they could lose access to their freedom through the court system.” 

Even still, Johnson said those on death row stand to gain much from clemency. They could have better access to rehabilitative programming.“We’d been told many times point-blank, ‘You are not here to be rehabilitated,’” Wilkerson writes in “Bone Orchard.”

Receiving clemency would also allow more opportunities for them to see their loved ones because of a less restrictive visitation policy, Johnson added.

And obviously, they won’t have a death sentence hanging over their heads. Only about 20 people have been added to death row since the last execution in the summer of 2006, according to the state’s roster. One of those is Wilkerson, who has been a part of the community since Dec. 20, 2006.

“We live shoulder-to-shoulder for ten, fifteen, twenty, thirty years,” he wrote in the book, “and gradually this me versus them mentality I’d walked in with, melted away, leaving only us.”

Two miles from Wilkerson’s cell, on a warm, wet December afternoon, members of the clemency campaign met in a parking lot across the street from the governor’s mansion. They sang, chanted and chatted about their support for emptying death row. Nickle said the theme of the day was “community, compassion and commutation.” 

Cooper has yet to say publicly whether he will commute the death sentences, or if he is even considering such a broad use of his clemency powers. He will leave office at the end of 2024, giving advocates about a year to build support for emptying North Carolina’s death row.

Chapman and Rivera stood in a corner laughing amongst themselves as two people sang “We Shall Overcome” to the crowd. After a few minutes, the exonerees went separate ways. Rivera stepped onto the sidewalk, glancing at the signs that listed the birth date and day of execution of 43 people killed by the State of North Carolina. 

The rallies are a surreal experience for Rivera. The names on the signs aren’t just words to him. When he sees or hears the names of people still facing a death sentence, those who haven’t yet been executed, he can still see their faces, and he wonders how they’ve changed in the 24 years he has been free.

“I knew these guys personally,” Rivera said. 

He feels a sense of survivor’s guilt for having gotten off death row. He still thinks about what it was like living there, “the horrible conditions,” having to reckon with “how I went from that to this,” as he gestures at the wide open parking lot, the community of supporters. 

“Is it fair that people are still suffering under those conditions?” he asked. “I think about that, me being free and at these events.”

The post Inside the Urgent Campaign to Commute North Carolina’s Entire Death Row appeared first on Bolts.

Then that December, police arrested a third suspect, Jah Sutton. Video did not show her at the scene of the crime but investigators connected her to the killing by claiming she was dating McLean and saying they discovered her DNA on a bullet casing found at the store. Walsh announced that he would prosecute Sutton for capital murder and also seek the death penalty against her.

In a preliminary hearing, a state trooper admitted there was no additional evidence against Sutton, testifying that he had not found anything on her cell phone tying her to the killing of Tarpley. Sutton’s lawyer, Timothy Dawson, has insisted there was no connection, pointing out that Sutton was not in fact McLean’s girlfriend; she had previously admitted to an investigator that she knew him by a different name and that police had only seen her with him because she was a sex worker. “The location of DNA on a shell casing does not establish anything other than at some unknown point in time, this Defendant handled or touched that casing. Nothing more,” Dawson wrote in a court filing. 

In an interview, Dawson said that he thought Walsh had overstepped, telling Bolts, “There’s not sufficient evidence to even prosecute a murder charge against her, let alone a capital case.” 

Ryan James, a lawyer for Christian, Sutton’s co-defendant, filed a motion in May arguing that Walsh should be disqualified from prosecuting the case because “there is more than just suspicion that the death penalty is being sought by this [DA] for political gain.” In his motion, James alleged that Walsh chose to seek the death penalty against Sutton to pressure her into giving information about her co-defendants. “[M]onths before being charged, Ms. Sutton was detained, badgered, and threatened by law enforcement,” James wrote, claiming police told her that if she didn’t cooperate she would lose custody of her child and go to jail, where she’d be brutally killed by a drug gang.

Since taking office in 2021, Walsh has made a name for himself because of how frequently he decides to pursue the death penalty. In his first year, he sought the death penalty in five out of nine of the county’s murder cases. To date, his office is responsible for 12 capital cases that have yet to go to trial, making up approximately a quarter of the total pending death penalty cases in Pennsylvania. Washington County only makes up approximately two percent of Pennsylvania’s population. 

Walsh, a Republican who is seeking a full term on Nov. 7, has defended how often he seeks the death penalty, including in the case against Sutton. Last year he told KDKA News, “I’m very consistent and will seek the highest form of punishment for the most heinous crimes.” Walsh did not respond to multiple requests for comment for this story, but this week his office filed a motion for a gag order to bar lawyers on the Christian case from speaking about it as well as another motion seeking to punish them with sanctions over their attempt to remove him from the case. His motions also cite the inquiries he received from Bolts.

At the same time, Pennsylvania has been moving away from the death penalty over concerns about the cost of capital cases, racial biases, and its overall ineffectiveness in reducing crime. There’s been a moratorium on executions in the state since 2015, meaning that anyone sent to death row won’t be executed until it’s lifted. Earlier this year, Governor Josh Shapiro called on the Pennsylvania legislature to abolish the death penalty. 

Marc Bookman, executive director of the Atlantic Center for Capital Representation, an organization that works on death penalty issues, said that Walsh is “abusing his discretion by seeking the death penalty in every case he can,” and his use of the death penalty is straining Washington County’s resources. “Washington County doesn’t have qualified lawyers for these capital cases, and it’s terribly expensive to taxpayers,” he said.

The death penalty has emerged as a key issue in the local DA race this year as Walsh faces Christina DeMarco-Breeden, a prosecutor in nearby Somerset County who is from Washington County. DeMarco-Breeden says the death penalty should be used for the worst crimes and criticized Walsh for overusing the punishment for his own political gain while depleting taxpayer dollars to fund prosecutions. “It is my position that he’s politicizing the death penalty,” she told Bolts. 

Walsh took over as Washington County’s DA in 2021 after the death of his predecessor, Eugene Vittone. During Vittone’s nine years in office, he sought the death penalty just five times. Prior to Walsh’s role in the DA’s office, Walsh worked in private practice representing clients in criminal cases, DUIs, and white collar crime.

Walsh’s capital cases are primarily focused on infants who died under a variety of circumstances, with seven people facing the death penalty for such charges. In December 2022, he said he would pursue the death penalty against a couple after their baby died from fentanyl ingestion; one of their lawyers said that the poisoning was accidental, which would have disqualified them for the death penalty because the punishment requires the killing to be intentional. Another of Walsh’s death penalty cases involves a couple who were found to have hidden their baby in a wall after he died; they say he died naturally and hid him because they could not afford to bury him. Walsh is also prosecuting a man who said his baby died after he fell on top of him; child welfare investigators said that was likely not the case and that his injuries denoted physical abuse. 

As deputy DA in Somerset County, DeMarco-Breeden is currently seeking the death penalty against one defendant, Paul Kendrick, who is accused of killing a prison guard. DeMarco-Breeden said that she thinks the case warrants the death penalty because there’s strong evidence of the brutal killing. “I believe it’s the first degree case, it’s actually on, it’s on surveillance video. I think the jury is going to have a really hard time watching it,” she said. 

If elected Washington County DA, DeMarco-Breeden said she would review each capital case to see if the evidence is sufficient for a death sentence. “Ethically, I have to,” she said. “I think you know, as prosecutors we are bound by the law, we are bound by only proceeding on charges that we believe we can prove beyond a reasonable doubt.”

Washington County is located on Pennsylvania’s western border and is home to roughly 209,000 people, about one fifth the size of Allegheny County, which is home to Pittsburgh. Yet Walsh has sought the death penalty much more aggressively than his counterpart there; Allegheny County has just five pending death penalty cases, despite having a higher murder rate.

Critics have said that Walsh’s decisions to seek the death penalty will be costly to Washington County taxpayers. It costs much more to prosecute death penalty cases than other murder cases that are non-capital. Researchers haven’t studied how much death penalty prosecutions in Pennsylvania are but in Kansas, for example, it costs an average of $395,800 to take a death penalty case to trial and appeal, as opposed to $99,000 for non-death penalty cases. Indiana death penalty trials cost an average of $789,000, while the average cost of a life without parole case is $185,000, according to researchers. 

Compounding the problem, Pennsylvania is the only state in the country that doesn’t provide state funding for indigent defense. Instead, each county is responsible for budgeting for public defenders, and because the majority of capital defendants are indigent, or too poor to afford their own attorney, they rely on public defenders to represent them. There are 12 pending capital cases but only 10 lawyers in Washington County who are qualified to work on death penalty cases, a database tracking qualifications shows. 

Historically, Pennsylvania death sentences haven’t held up in appeals. More than half of the 408 people sentenced to death since the beginning of the modern death penalty era in 1976 have had their sentences reduced on appeal and six people have been exonerated.

New death sentences have declined over the years. Since 2015, just nine people have been sentenced to death. Of the 100 people currently on Pennsylvania’s death row, just one is from  Washington County. 

Bookman with the Atlantic Center says Walsh’s use of the death penalty will spark long and costly litigation. “It’s likely these cases will end up being reversed and retried years from now, opening up old wounds for the victims and costing even more money to the taxpayers.”

The post Western Pennsylvania Prosecutor Makes His County an Epicenter for the Death Penalty 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.