Alabama performed its first execution of 2019 following a legal back and forth over whether the inmate could be put to death without a chaplain of his faith in the chamber.
The state executed Dominque Ray, a Muslim inmate who had appealed to federal courts after the state refused to allow an imam to be in the chamber. He died Thursday at 10:12 p.m. by lethal injection, the Montgomery Advertiser reported.
“It is my duty as the governor of Alabama to uphold the laws of our state,” Gov. Kay Ivey said. “A role I hold with much reverence is ensuring that justice is done, by both the victims and the convicted. Due to the nature of his crime, the decision of a jury to condemn him to death and because our legal system has worked as designed, Mr. Ray’s sentence was carried out.”
The Supreme Court overturned a stay by the 11th Circuit Court of Appeals, allowing the execution to move forward just hours before his death warrant was set to expire.
Ray and his attorneys argued Alabama’s policy of having a Christian prison chaplain present in the execution chamber is a violation of the First Amendment. Ray wanted his imam — a local Muslim religious leader — present for his execution and last rites instead of a Christian chaplain.
The high court voted along partisan lines in a 5 to 4 decision to vacate the 11th Circuit’s stay. The court said Ray waited too late to challenge the execution.
“Because Ray waited until Jan. 28, 2019, to seek relief, we grant the state’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit,” the court found.
They cited precedent in a 1992 case that allows the court to consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief. The justices in the majority took no position on whether the state’s practice does, in fact, violate the First Amendment’s Establishment Clause.
Justice Elana Kagan, writing in her dissent, did take a position.
“Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites,” Kagan wrote. “But if an inmate practices a different religion — whether Islam, Judaism or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”
To justify religious discrimination, Kagan wrote, the state must show that the policy is narrowly tailored to a compelling interest, citing Supreme Court precedent.
“I have no doubt that prison security is an interest of that kind,” she wrote. “But the State has offered no evidence to show that its wholesale prohibition on outside spiritual advisers is necessary to achieve that goal. Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer.”
More directly to the point of the Supreme Court’s finding Thursday, Kagan wrote that it could be argued Ray did bring his case within a reasonable time period.
Holman Correctional Facility’s warden denied Ray’s request to have an imam in the chamber on Jan. 23. Ray filed a complaint five days later on Jan. 28. The 11th Circuit didn’t issue a stay until Tuesday, Feb. 6, a day before his execution.
“The state contends that Ray should have known to bring his claim earlier, when his execution date was set on Nov. 6,” Kagan wrote in the dissent. “But the relevant statute would not have placed Ray on notice that the prison would deny his request.”
Kagan cited Alabama code that state a spiritual adviser and the prison chaplain may be “present at an execution.” But family members and newspaper reporters are also listed under the same statute. They are not allowed in the actual chamber but are held in a separate viewing room.
“It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room,” Kagan said. “So there is no reason Ray should have known, prior to Jan. 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.”
The state is notoriously quiet about its execution protocols, and it doesn’t release where it gathers its lethal injection drug cocktail.
Ray was originally scheduled for execution at 6 p.m. Thursday, but his warrant was valid until midnight, giving the state time to move forward with the lethal injection.
No spiritual adviser — including Holman’s Christian chaplain — was present for the execution, the AP reported. The state amended its execution policy after the 11th Circuit’s ruling, according to court documents.
The state argued that a prison chaplain was only allowed in the execution chamber because he is a Department of Corrections employee trained in execution protocol. Ray’s imam would not be trained in the protocol and could be a potential threat to the security of the execution, the state argued as their reason for not allowing him in the chamber.
“To accommodate Ray’s stated beliefs and the Establishment Clause, the ADOC has amended its protocol and will no longer allow the prison chaplain, or any other spiritual adviser, in the execution chamber,” the state said in its emergency motion to the court.
Ray’s lawyer, John Palombi, a federal public defender, said the state’s voluntary decision to change its practice last minute for one execution does not make the case any less important.
“Without a definitive court ruling on this question, Alabama could continue to change and unchange its execution protocol at whim,” Palombi wrote.
Ray was convicted for the rape and fatal stabbing of a 15-year-old girl, Tiffany Harville, of Selma, and sentenced to death in 1999. It wasn’t the first killing Ray was convicted of.
Just five months earlier, he was sentenced to life in prison for his role in the murders of two Selma teenage boys.
“Mr. Ray was convicted by a jury of his peers of killing Tiffany Harville after taking her from the safety of her home,” Ivey said. “Courts at every level have upheld Mr. Ray’s conviction for his senseless act. Accordingly, the laws of this state have been carried out. It is my prayer that, with tonight’s events, the Miss Harville’s family can finally have closure.”
Ray has tried numerous times to appeal his death penalty. His lawyers have argued that he was not adequately represented during the penalty phase of his trial for Harville’s death.
His lawyer in the 1999 trial did not hire an investigator to look into his background for mitigating evidence that could have been used to avoid a death penalty. Though the lawyer “stands by his work” in the trial, he has acknowledged that not all evidence now available was available then.
“I’ve done this a long time, I’ve been practicing law now for 34 years, and I know that I could have done better representing Dominique if I would have had somebody to guide our investigation of mitigation evidence,” attorney William Whatley told ProPublica.
Whatley had experience arguing against the death penalty in capital murder trials, and Ray was his only client sentenced to death. But Ray allowed his co-counsel, just a few years out of law school, to deliver the presentation during the sentencing phase, which has also drawn scrutiny.
Alabama remains one of 30 states with the death penalty. More than 40 death row inmates have been executed since 2000, and last year, Alabama executed two inmates. After Ray’s death, 175 inmates remain on death row.
Alabama Democratic Party lawsuit was back in court on Thursday
The dispute goes on forever and the lawsuit never ends.
A Montgomery County Circuit Court judge on Thursday delayed a decision on whether he has the standing to settle an internal dispute within the Alabama Democratic Party but indicated that he’s leaning towards ruling that he does.
Judge Greg Griffin said he would rule soon on the matter, but made no promise that the decision would come before Alabama’s primary elections on March 3.
Thursday’s hearing was the latest in the seemingly endless fight over control of the ADP and was the next step in a lawsuit brought by former ADP chairwoman Nancy Worley. Worley and her supporters, which have proven to be a decided minority of the State Democratic Executive Committee, filed the lawsuit late last year after the Democratic National Committee invalidated her re-election as chair and forced the party to change its bylaws and hold new elections.
Those new elections resulted in Rep. Chris England being elected as party chairman and former Rep. Patricia Todd being elected vice-chair. The new party leadership has the backing of the national party, which pulled funding from ADP because Worley and others refused to rewrite the state party’s bylaws to be more inclusive.
Worley filed her initial lawsuit prior to the elections in which she was booted out of her position, and Griffin, who was widely criticized for his handling of the case, granted a temporary restraining order that prevented the Reform Caucus of the ADP from meeting. That decision by Griffin was immediately overturned by the Alabama Supreme Court, in a rare, late-Friday evening emergency ruling.
However, the ALSC did not rule on whether Griffin had standing to settle a dispute within the state party. The court left that question up to Griffin, which was why Thursday’s hearing was held.
The entire thing seems to be an exercise in futility at this point.
The ADP has moved on, with England certifying candidates and DNC officials clearly recognizing him as the rightful party chair. The DNC has no desire to work with Worley, who was stripped of her credentials for failing to follow directives and bylaws of the party.
Even if Griffin creates a reason to invalidate England’s election, it doesn’t seem to matter much. The DNC has validated it, and it accepted the ADP’s new bylaws and changes to leadership structure.
If Worley were to prevail in court, it’s unclear exactly what she would win.
Legislation would limit death penalty appeals
Alabama Lt. Gov. Will Ainsworth on Tuesday discussed legislation that would reduce the length of some death penalty appeals.
“Over the last 13 month, seven Alabama law enforcement officers have been killed in the line of duty by violent criminals, which is a new record and obviously not one the state of Alabama is proud of,” Ainsworth said during the press conference at the Alabama State House on Tuesday. “Back the blue has got to be more than just a slogan. Actions must follow words.”
Ainsworth said that death row inmates in Alabama serve approximately 14 years on average before executions are carried out, and that there needs to be a “fair but expedited process in Alabama.”
The proposed legislation would prevent the Alabama Supreme Court from hearing death row appeals in capital murder cases, and would stop all such appeals at the state Court of Criminal Appeals level.
The bills would also require the criminal appeals court to expedite death row appeals when possible, and would reduce the amount of time a person has to appeal such convictions to the U.S. Supreme Court, Ainsworth said.
“This legislation still affords a thorough appeals process, and all the protections guaranteed to them under the U.S. Constitution,” Ainsworth said. “It has been designed to provide both equal justice to inmates, and swifter justice to their victims.”
State Sen. Cam Ward, R-Alabaster, a candidate for a seat on the state Supreme Court and sponsor of the senate’s version of the bill, said during the press conference that while overall crime rates have been declining, murders in Alabama have increased 25 percent over the last three years.
“I’ve always been an advocate for criminal justice reform, but let me tell you something, public safety is first and foremost, Ward said. “…I think this is a reasonable bill. It still provides for due process.”
State Rep. Connie Row,R-Jasper, is sponsoring the bill in the House and said that as a former police chief she recognizes the value of the lives of those who serve the public. She also worked with crime victims in capital cases, she said, and in “capital cases it’s seeing if you can live long enough to see justice served in a death penalty case.”
The bills also add language that would allow the Alabama Department of Corrections to conduct executions at facilities other than the Holman Correctional Facility near Atmore, where the state’s death chamber is currently located.
ADOC commissioner Jeff Dunn said in January that all death row inmates were being moved to Holman, while the majority of the prison’s areas for other incarcerated men was being closed due to concerns over maintenance problems in a tunnel that carries utilities to those portions of the prison. The death row section of Holman was to remain open, Dunn said.
There are 175 people serving on the state’s death row, according to Alabama Department of Corrections statistics.
Attempts Tuesday to reach staff at the Equal Justice Initiative for comment on the legislation were unsuccessful. The Montgomery legal aid nonprofit works to exonerate death row inmates, among its other initiatives.
According to the Washington D.C.-based nonprofit Death Penalty Information Center 167 incarcerated people on death row in the U.S. have been exonerated and released from prison since 1973. Among those formerly on death row, six were scheduled to die by execution in Alabama.
The last Alabama death row inmate exonerated was Anthony Hinton, freed in April 2015 after spending 30 years on death row for the 1985 murders of two fast food supervisors in Birmingham.
The only evidence presented at Hinton’s trial was ballistics testing state prosecutors said proved the bullets that killed the two men came from a gun Hinton’s mother owned.
Hinton lost appeals for a decade before the Equal Justice Initiative took up his case. Subsequent ballistics testing by the nonprofit in 2002 proved that the bullets weren’t a match for the firearm, but the state declined to re-examine the case.
It took another 12 years for Hinton’s appeal to reach the U.S. Supreme Court, which reversed the lower court’s ruling and granted a new trial.
The judge in his new trial dismissed the charges after the state’s prosecutors determined through additional testing that the bullets could not have come from Hinton’s mother’s gun.
A 2009 study by professors at the University of Colorado and published in the Journal of Criminal Law and Criminology found that 88 percent of the leading criminologists in the U.S. polled did not believe the death penalty effectively deters crime.
Of the leading criminologists polled in the study, 87 percent said that speeding up executions would not add a deterrent effect on crime.
Alabamians for Fair Justice urges lawmakers to repeal habitual offender law
Tuesday in Montgomery, over a hundred advocates for criminal justice reform will urge Alabama lawmakers to adopt reforms to help alleviate Alabama’s prison crisis. Alabamians from across the state will push for major changes that would help make prison sentences proportionate to the crimes committed, prevent people convicted of minor offenses from going to prison, and provide needed supports for people re-entering communities. Today, Alabama’s prison are roughly 170 percent over capacity with staffing levels at 30 percent.
In April 2019, the U.S. Department of Justice (DOJ) warned Alabama that the conditions in the male prisons likely violate the U.S. Constitution’s Eighth Amendment against cruel and unusual punishment. The DOJ letter found Alabama’s prisons do not protect people from violence, sexual abuse, and fail to provide safe living conditions. Alabama’s prison system was also found to have “persistent and severe shortages of mental-health staff and correctional staff, combined with chronic and significant overcrowding,” in in 2017 state-wide ruling in Braggs v. Dunn.
“It is important for Alabama to see the people behind the prison walls,” said LaTonya Tate, executive director and founder, Alabama Justice Initiative. “These are real fathers, mothers, sons, daughters, wives and husbands behind every excessive prison sentence. Lawmakers need to understand that incarcerated Alabamians, their families, and their supporters are constituents too. Their voices matter.”
The lobby day is organized by the Alabamians for Fair Justice (AFJ) coalition.
AFJ’s legislative priorities includes:
- Repealing Alabama’s “three strikes” law, also called the Habitual Felony Offender Act, or HFOA. About 6,000 people in Alabama are serving escalated sentences based on prior offenses, often committed as teenagers. The law permits a Life Without Parole sentence for a single Class A felony if someone has a prior minor drug or property conviction. About 500 Alabamians are sentenced to die in prison for non-homicide crimes under this law.
- Reducing sentences for marijuana possession. Each year, nearly 1,000 people face felony convictions for marijuana possession, a “crime” that is legal for nearly half of the population in the United States. Alabama spends roughly $22 million tax dollars per year to enforce possession laws.
- Making the 2013 sentencing guidelines retroactive. The 2013 presumptive sentencing guidelines were a major contributor to Alabama’s prison population declining. Now, hundreds of people sentenced before 2013 still serve longer sentences than they would face if sentenced now – and for nonviolent crimes. AFJ asks for the Legislature to apply the same guidelines to people convicted prior to the new guidelines.
- Overhaul the state’s community corrections, diversion, and alternative court programs to make them more accessible, especially to people without money, and more accountable to the taxpayers of Alabama. Currently, these programs have no uniform standards, lack necessary oversight, and are funded by the participants.
- Reform the state’s parole system. Roughly nine out of every 10 people up for parole were denied since Governor Kay Ivey appointed Charles Graddick as the director of Alabama’s Bureau of Pardons and Paroles. If this rate continues, ACLU of Alabama estimates the state prison population will increase by 3,700 people due to the dramatic drop in paroles being granted.
Alabama spends about $500 million in tax dollars each year for over 20,000 people in custody, yet the state’s prisons remain dangerous, overcrowded, and understaffed.
Governor Ivey’s main solution to Alabama’s unsafe prisons is to spend $2.6 billion taxpayer dollars “lease” three new mega-prisons that would be built by a private, for-profit corporation.
“When you have the worst prisons in the country, the solution is not to build more. The solution is to enact smart, commonsense reforms to provide treatment, services, and alternatives in communities and keep people out of prison,” said Tate.
U.S. Attorney Jay Town to serve as working group co-chair on presidential commission
U.S. Attorney Jay E. Town will serve as a Co-Chair of the Criminal Justice System Personnel Intersection Working Group on the Presidential Commission on Law Enforcement and the Administration of Justice. The working group will examine how police, judges, prosecutors, defense attorneys, and correctional authorities intersect so that the system of criminal justice can enhance its ability to prevent and control crime and serve the victims of crime.
“I am humbled and honored to serve as working group Co-Chair on the Presidential Commission on Law Enforcement and the Administration of Justice,” Town said. “The Criminal Justice System Personnel Intersection Working Group will address a multitude of issues seeking to broaden the relationships between every layer of law enforcement, improve relations between the community and the justice system, and find innovative ways to reduce crime as a result. I look forward to joining my colleagues in this incredibly important and collective effort to help this Administration identify effective and systemic criminal justice reforms that will reduce and prevent crime in America.”
On October 28, 2019, President Donald J. Trump signed Executive Order No. 13896, authorizing and designating the Attorney General to create such a Commission that would explore modern issues affecting law enforcement that most impact the ability of American policing to reduce crime. Attorney General William P. Barr announced the establishment of the Commission on January 22, 2020.
The Executive Order instructs the Commission to conduct its study by focusing on the law enforcement officers who are tasked with reducing crime on a daily basis. It also directs the Commission to research “important current issues facing law enforcement and the criminal justice system,” and recommends a variety of subjects for study, such as, but not limited to:
- The challenges to law enforcement associated with mental illness, homelessness, substance abuse, and other social factors that influence crime and strain criminal justice resources;
- The recruitment, hiring, training, and retention of law enforcement officers, including in rural and tribal communities;
- Refusals by State and local prosecutors to enforce laws or prosecute categories of crimes;
- The need to promote public confidence and respect for the law and law enforcement officers; and
- The effects of technological innovations on law enforcement and the criminal justice system, including the challenges and opportunities presented by such innovations.
In studying these issues, the Commission will be assisted by “working groups.” These working groups will consist of subject matter experts across the federal and state government and have a particularized focus on distinct issues the Commission will review (e.g. “Technology”). They will assist and facilitate the Commission’s study of these issues, and provide advice and counsel on their specific subject. The working groups, which will include our federal partners from the Departments of Homeland Security, Health and Human Services, Interior, Agriculture, Housing and Urban Development, and other federal agencies, will provide much needed expertise and insight on the important issues affecting law enforcement. This Commission requires a team effort. Such a rich variety of federal and state government participation is essential to the work at hand. Once the Commission completes its study, it will recommend the best measures to empower American law enforcement to combat the criminal threats of our time, and to restore the utmost public confidence in our law enforcement to protect and serve.
In forming the Commission, the Department of Justice has marshaled together the expertise and experiences of all sectors of the law enforcement community—urban police departments, county sheriffs, state attorneys general and prosecutors, elected officials, United States Attorneys, and federal law enforcement agencies. They come from distinct states, cities, counties, and towns across the country but share a common mission of safeguarding their respective communities from a variety of threats.
The year 2020 marks the 150th anniversary of the Department of Justice. Learn more about the history of our agency at www.Justice.gov/Celebrating150Years
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