CALL 205.538.3340

The Law Office of J.D. Lloyd Logo

AfterTheTrial.com... Because There’s Hope After the Trial

BLOG

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


Tags

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

Archive

DISCLAIMER

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.