CALL 205.538.3340

The Law Office of J.D. Lloyd Logo Because There’s Hope After the Trial


After The Trial Blog

The After The Trial blog presents insights on ongoing and recent trials around the state of Alabama, including weekly criminal law round-ups.

Alabama's Lethal Injection Survives Another Challenge

J.D. Lloyd - Tuesday, February 21, 2017



Today, the United States Supreme Court denied an Alabama death-row inmate’s request to review the constitutionality of Alabama’s three-drug execution protocol. Tommy Arthur argued that Alabama’s lethal injection cocktail violates the Eighth Amendment’s ban on “cruel and unusual punishment” because the method risks severe and unnecessary pain and suffering. The Court’s refusal to review the protocol almost certainly means that Tommy Arthur, who has been on death row for more than 30 years, will likely be executed soon. It also likely means that defendants who hope to challenge Alabama’s method of execution face a massive uphill battle in future fights.


Since lethal injection became the preferred method of execution in the 1980s, almost all states have used a three-drug cocktail to carry out the execution. The first drug administered would be a large amount of a sedative that’s supposed to knock the inmate unconscious and suppress all sensation. The second drug would be a paralytic, which would stop all muscular-skeletal movements, including the diaphragm. The final drug would cause the heart to stop.


Until recently, the first drug used in the three-drug protocol was either sodium thiopental. The manufacturer discontinued production of that drug, so states turned to pentobarbital. That drug also became unavailable in 2013. The states then turned to midazolam, the drug at the heart of recent Eighth Amendment litigation.


According to experts, midazolam doesn’t have the anesthetic effect of thiopental or pentobarbital. This is important because the second and third drugs administered in the the lethal injection process are extremely painful. Reports describe the pain from these drugs as a searing, burning pain spreading from the injection site throughout the body. Again, they literally stop your breathing and your heart. So, without a strong sedative, an inmate is likely facing an excruciating (and often prolonged) execution.


Executions using midazolam have been awful. Defendants executed with the drug in Oklahoma, Arizona, and Alabama died slowly and, apparently, very painfully when midazolam has been the first drug administered. (Justice Sotomayor’s dissent below details these executions.)


In challenging a method of execution as unconstitutional under the Eighth Amendment, a defendant must show a readily available constitutional alternative. Here, Arthur argued that there was a constitutional alternative to lethal injection in Alabama: the firing squad. The lower federal courts rejected this claim because Alabama law doesn’t specifically provide for death-by-firing-squad. Because Arthur couldn’t prove a constitutional alternative, the court wouldn’t review his claim that the cocktail using midazolam was unconstitutional under the Eighth Amendment.


Justice Sotomayor wrote a scathing dissent from the the Court’s refusal to consider this case. The dissent pointed out that Alabama recently amended its laws to allow for the execution of a defendant by “any constitutional method of execution.” See 15-18-82.1(c). Justice Sotomayor argued that Arthur met his burden of showing a constitutional alternative, even if that alternative wasn’t on the books in Alabama.


The dissent here was largely a critique on the lethal-injection protocol itself and the Court’s refusal to consider how screwed up our Eighth Amendment jurisprudence has become when a defendant can show that a method of execution causes unnecessary (and unconstitutional) pain and suffering, but can still be executed with that method because a State doesn’t have another method of execution on the books.


Read Sotomayor’s dissent here.



If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.



Alabama Death-Row Inmates Ask for SCOTUS Review

J.D. Lloyd - Friday, January 06, 2017

Today, the US Supreme Court is considering three cert petitions involving important questions challenging the Alabama capital sentencing scheme. Two challenges involve the Supreme Court’s 2016 ruling in Hurst v. Florida, which held that any fact necessary to expose a defendant to the death penalty must be found by a jury, not a judge.


Two cert petitions involve Tommy Arthur, a man who’s been on Alabama’s death row for 30 years. One petition is a Hurst-based challenge. In that petition, Arthur (1) makes a general challenge to Alabama’s scheme under Hurst; (2) argues Hurst requires a unanimous jury vote for death (his vote for death was 11-1); and (3) claims Hurst applies retroactively.


Arthur’s second petition raises Eighth Amendment claims against Alabama’s execution protocol.


The Court is also considering a cert petition from Jerry Bohannon. While I do not have a copy of Bohannon’s cert petition, I would imagine he is raising claims similar to those he presented to the Alabama Supreme Court in his case that was decided in September 2016. There, the Court rejected a number of Hurst claims, most notably Bohannon’s challenge that Hurst requires a jury to decide the weight of aggravating factors against mitigating factors.


In Alabama, a judge makes the final sentencing determination and must decide that the aggravating factors of a case outweigh the mitigating factors in order to sentence a defendant to death. Under Alabama law (which is grounded in pre-Aprendi/Ring SCOTUS decisions), the weighing of aggravators versus mitigators is purely a job for the judge, not the jury. A fairly clear and long line of cases has held that the Sixth Amendment does not require a jury to conduct this weighing. Hurst calls this thinking into question.


I’m bearish on either case’s chance. I think Arthur has a better shot on the Eighth Amendment issue than the Sixth Amendment issue, but I don’t think he’d have the votes to do anything. Bohannon’s weighing claim is somewhat blunted by the fact that the jury recommended death by a vote of 11-1, so whatever error he claims might be harmless. Moreover, I don’t believe he raised a claim that Hurst requires juror unanimity, which probably would have helped. The Court should wait on a better vehicle – an override case - to take that issue up.


However, should the Court take up Bohannon’s case on the weighing issue, I think there’s a good chance the Court would rule in Bohannon’s favor and hold that the Sixth Amendment requires a jury to determine the weight of aggravators versus mitigators. I think the votes are there. Ginsburg authored Ring, Sotomayor wrote a scathing dissent in the denial of cert in Woodward v. AL, a case that challenged override in the pre-Hurst era, Breyer believes the Eighth Amendment requires a jury to find everything (even if he doesn’t like Ring) and joined Sotomayor’s dissent in Woodward, and Kagan, Kennedy, Thomas and Roberts were in the majority in Hurst.


Even if the Court doesn’t take up one of these two cases, I believe the writing is on the wall that the Court will be forced to take a closer look at Alabama’s capital sentencing scheme either this term or next.



If you or someone you know has been convicted of wrongful criminal charges, there is hope after the trial. Contact us today by clicking HERE.



Recent Posts


editorial 28 U.S.C. § 2254 alabama criminal law roundup arson calhoun county alabama alabama law enforcement agency warrior alabama church robberies blountsville alabama death penalty john earle redfearn IV v state eric sterling Eutaw Alabama drug smuggling dothan alabama betton v state forced isolation eighth amendment, boaz alabama south carolina judicial override negligent homicide brendan dassey, steve avery, making a murderer, scotus, netflix pell city alabama birmingham alabama illegal gun carry department of justice, pelham alabama Etowah County Alabama, constitutional law, operation bullseye ferguson missouri christmas shooting florence alabama shooting legende v state Adamsville alabama shelby county hanceville alabama adger alabama drug busts Kareem Dacar Gaymon bernard v north dakota drug trafficking, morgan county alabama serial debtor prison towles v state fraudulent checks US Supreme Court Update midazolam car accident eugene lee jones v state Sardis Alabama Alabaster alabama scotus Walker County Alabama marion county Xavier Beasley hall v florida criminal justice reform, court of criminal appeals fourth amendment sixth amendment § 13A-3-23(d) immunity hearing montgomery alabama Jefferson County Alabama self defense Wesley Adam Whitworth heritage christian university stoves v state dekalb county alabama parole fake kidnapping, smith v state gun rights huntsville tarrant alabama Woods v State second amendment baldwin county alabama lethal injection clarence thomas edwards v arizona peyton pruitt New York Times russell calhoun Shonda Walker, unlawful manufacturing decatur alabama texas cullman alabama christian guitierez drug activity OJ Simpson ex parte briseno murder Kay Ivey blount county alabama keith v state Briarwood Presbyterian Church West Alabama tuscaloosa alabama drug possession, dora alabama making a murderer Thomas Hardiman benjamin todd acton Benn v State criminal mischief bessemer alabama sheffield v state kimberly alabama Ingmire v State Guy Terrell Junior Justice Sotomayor adnan syed, rainbow city alabama department of justice madison alabama stanley brent chapman court systems, Samuel Alito baltimore city circuit court abduction talladega superspeedway brady v maryland sentencing law and policy blog summaries prostitution sting Hillary Clinton, brian fredick lucas avondale alabama death penalty, economic growth theft of property lauderdale county alabama Tracie Todd CCA update felony assaults robberies narcotics investigation mobile alabama levins v state court of criminal appeal releases Stephen Breyer asia mcclain mcwilliams v dunn nicholas hawkins embezzlement utah v strieff state of alabama homicide rate street racing battles v state warrantless blood draws sexual assault hurst v florida 2016 election, beylund v north dakota bailey v us netflix operation crackdown steve avery moore v texas SCOTUS, eleventh circuit ruling Fentanyl § 13A-3-23 foley alabama debit card skimming scams mike gilotti lamar county utah supreme court Gardendale Alabama OJ Simpson Made in America trussville alabama attempted murder home repair fraud sarah koenig LWOP crime of passion concealed carry Pleasant Grove Alabama apprendi v new jersey habeas corpus relief Donald Trump, the mannequin challenge nathan woods Lucky D Arcade pinson alabama Malone v State constitutional violations Neil Gorsuch Marengo County Alabama hoover alabama criminal justice abuse drug seizure jerry bohannon Joshua Reese st clair county alabama gadsden alabama Rule 32 Easter fraud Dylann Roof campbell v state underage drinking Mike Hubbard identity theft greene county alabama abandonment alfonso morris oneonta alabama anniston alabama, armed robbery npr assault mulga alabama breaking and entering fultondale alabama kenneth eugene billups endangerment of a child shooting death Glaze v State strickland v washington illegal gambling social media state of arizona maryland court of special appeals mountain brook alabama kidnapping huntsville alabama springville alabama cherokee county alabama limestone county alabama lethal injection drugs moving violations executions gun control heflin alabama birchfield v north dakota capital offenses homicide aziz sayyed capital murder alabama supreme court hurst mandamus morris alabama domestic violence public assistance fraud road rage fort payne alabama bomb threat implied consent ake v oklahoma drug crimes pruitt v state hoax destructive devices shoplifting animal cruelty ring v arizona terell corey mcmullin minor offenses aiding and abetting mount olive alabama burglary albertville alabama Alonzo Ephraim domestic abuse brookside alabama banville v state William Pryor brendan dassey alabama Tommy Arthur theft capital punishment mccalla alabama fairfield alabama,



These recoveries and testimonials are not an indication of future results. Every case is different, and regardless of what friends, family, or other individuals may say about what a case is worth, each case must be evaluated on its own facts and circumstances as they apply to the law. The valuation of a case depends on the facts, the injuries, the jurisdiction, the venue, the witnesses, the parties, and the testimony, among  other factors. Furthermore, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Get Free Legal Advice  Contact us for a complimentary legal consultation

I am interested in scheduling a free legal consultation and receiving additional information.

Submitting Form...

The server encountered an error.

Thank you, your  entry has been  received.

© 2017 The Law Office of J.D. Lloyd, LLC. All Rights Reserved. |


As required by Rule 7.2(e), Alabama Rules of Professional Conduct, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.