Failures of capital punishment: Alabama, Missouri, and Oklahoma

Incompetence, racism, and ... wanting to kill so badly that you set an execution date when the man isn't even in your custody.

The death penalty has been in the news a lot in month of November, with three executions carried out in the United States last week alone. Four executions have taken place in November, and 16 so far in 2022.

What follows are three other stories, stories of people who have been scheduled or are scheduled to be executed this year. These stories, like so many others, exemplify the continued failures of capital punishment — specifically, what happens when states put a single-minded mission of carrying out executions ahead of either humanity or justice.

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ALABAMA: There were actually four executions scheduled for last week.

For the second time in a row, though, Alabama officials were unable to carry out a scheduled execution. This follows an execution that took more than three hours for Alabama to carry out earlier this year. As Elizabeth Bruenig later reported in excruciating detail at The Atlantic, the state’s cruel incompetence was on display throughout the evening it killed Joe Nathan James in July.

Another state might have taken action then to halt executions and at least review their process. That did not stop Alabama.

Nor did its failed attempt at carrying out the scheduled execution of Alan Eugene Miller in September, which Bruenig covered for The Atlantic as well. In that article, she described it as “that surreal odyssey of a night,” in which “Miller was suspended vertically from a cross-shaped table, hands and one foot bleeding in an execution chamber and the state of Alabama apparently realizing it wouldn’t be able to kill him within the time it had.” Miller eventually was taken back to his cell.

Then, on Nov. 17, the Supreme Court vacated a stay of execution granted to Kenneth Smith by the federal appeals court, a move that allowed Alabama to proceed with Smith’s scheduled execution. The media witnesses never even made it to the execution chamber, however, as the execution was called off. Again, we later learned that the reason for this was that Alabama is unable to properly carry out executions.

On Monday, Gov. Kay Ivey ordered a halt to two upcoming executions and any future executions while “a top-to-bottom review of the state’s execution process” takes place to determine “how to ensure the state can successfully deliver justice going forward.”

Now, you might think that means Ivey is finally taking responsibility for her corrections department’s failures. You would be wrong.

In one of the more absurd statements I’ve seen in an area of the law that regularly surfaces surreal moments (like those described by Bruenig in her reporting), Ivey said in her statement announcing the review today, “I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here.”

What’s more, both Ivey and the head of the Alabama Department of Corrections (ADOC), John Hamm, say that they’re solely doing this for the crime victims, not to ensure that the constitutional rights — or even humanity — of the people sentenced to die under their control are respected.

The Equal Justice Initiative called the execution suspension “a welcome and huge relief to many of us who see the tragedy that has come out of these horrific failed executions” in a statement, but also pushed back against Ivey and Hamm’s comments:

What has happened during executions in Alabama is unconscionable, unnecessary and completely avoidable. State officials need to own their failures with these recent torturous executions, and our dangerous and out of control prisons, if things are going to improve.

Robert Dunham, the executive director of the Death Penalty Information Center, defended the litigation that Ivey attacked.

“Legal efforts aimed at ensuring that ADOC executioners do not torture prisoners to death are not — and have never been — the cause of ADOC’s serial failures to timely establish execution IV lines,” Dunham said in a statement. “Nor are they the cause of ADOC’s evasiveness, lack of transparency, and repeated false statements to the media and the public.”

And yet, given Ivey and Hamm’s expressed views on their state’s executions, this halt to executions and review period is about the most that one could expect.

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MISSOURI: In Missouri, meanwhile, officials there are seeking to carry out what would be the fifth execution in the US this month — and the state’s second execution this year — by killing Kevin Johnson.

A special prosecutor has concluded that Johnson was initially prosecuted illegally by a man who “consistently made race-influenced decisions in his handling of capital homicides.” Under a recently enacted state law intended to address questioned convictions, the special prosecutor is seeking to have the conviction to be vacated.

That, of course, would take time to prove out, yet Johnson’s execution is set for Nov. 29. A lower court denied the special prosecutor’s requests in Johnson’s case. In a filing Monday at the Missouri Supreme Court, the special prosecutor asked for the scheduled execution to be stayed:

The Special Prosecutor has determined that racist prosecution techniques infected Mr. Johnson’s conviction and death sentence. Unless this Court stays the execution, the result in this case will forever have this cloud over it.

Later, the special prosecutor, who is speaking for the state, addressed the timing questions directly:

Johnson’s lawyers have also weighed in to support the stay request, asserting that “the state’s current execution schedule” should not be allowed to go forward. They note this timing issue has occurred “without any fault of Johnson, who applied for relief with the prosecuting attorney’s office last December, and who bears no responsibility for the fact that the office has a conflict of interest and did not move for the appointment of a special prosecutor until six weeks before his execution date.”

The Missouri Supreme Court has ordered the Missouri Attorney General’s office to file its response to the special prosecutor’s motion by 5 p.m. CT Wednesday. Replies from the special prosecutor and Johnson are due by 12 a.m. CT Sunday, with oral arguments scheduled for 1:30 p.m. CT Monday, Nov. 28 — a day before Johnson’s scheduled execution.

There also is a stay application, based on other grounds, already pending at the U.S. Supreme Court.

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OKLAHOMA: Finally, there’s Oklahoma and John Hanson — the man serving a life sentence in federal custody whom Oklahoma wants to execute under a state murder conviction. He remains in federal custody.

Oklahoma, however, is going to extreme lengths to try to get him in custody so that they can kill him — even though he is already in federal prison for life and, while he remains there, not their responsibility. Law Dork has covered this dispute extensively over the past month.

Oklahoma has scheduled Hanson to be executed on Dec. 15, but, for the reasons explained below, it looks unlikely at this point that the state will be able to proceed on that date.

Hanson’s clemency hearing had been scheduled for Nov. 9. In its lawsuit seeking a federal court order that the feds turn over Hanson to their custody, Oklahoma’s lawyers claimed that the clemency hearing was a reason why they would suffer “irreparable harm” if Hanson wasn’t transferred immediately. US District Judge Reed O’Connor — one of the most conservative district court judges in the country — didn’t act on Oklahoma’s lawsuit before that date, and, on Nov. 8, Oklahoma canceled his clemency hearing, noting only, “It will be rescheduled at a later date.” It has not been rescheduled.

On Nov. 17, however, O’Connor did issue an initial ruling in the case, agreeing with the federal government that his court lacked jurisdiction to hear part of Oklahoma’s lawsuit and asking for additional briefing on the other part of the lawsuit.

Regarding Oklahoma’s decision to seek a writ of habeas corpus in Texas to obtain custody of Hanson, who is in a federal prison in Louisiana, the federal government argued that O’Connor couldn’t even decide the matter because habeas litigation must be filed in the jurisdiction where the person in custody is being held. In addressing the habeas request, O’Connor agreed: “[T]he Court must first determine whether it has proper jurisdiction to decide the habeas question at all. It does not.”

Oklahoma argued in its second claim that federal officials acted “ultra vires” — outside of their lawful authority — in denying Hanson’s transfer as not in the “public interest” under the federal prisoner transfer statute. On that claim, O’Connor found that he had jurisdiction and ordered additional briefing on specific terms in the statute:

The parties are to submit their briefing on these questions by Dec. 2 — less than two weeks before the scheduled execution. (And, keep in mind, outside of this litigation, no clemency hearing has even been scheduled.)

All of this comes, moreover, as part of Oklahoma’s 25-execution spree announced in July, which is already underway. The state has killed five people this year, two earlier in the year and three of whom are part of the group of 25.