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“A mess”: Federal judge slams ADOC for handling of execution method

The judge took issue with ADOC’s secretive ways and mishandling of nitrogen hypoxia documents.


What a mess. 

That was the assessment of the Alabama Department of Corrections by a federal appeals court judge on Monday, as the U.S. Court of Appeals for the 11th Circuit attempted to sift the rubble of yet another death row legal challenge and the underhanded manner in which the state has attempted to defend its disgusting actions.

And they were absolutely disgusting. 

The state put to death an intellectually disabled man, likely in violation of the Americans With Disabilities Act, and then attempted to defend itself, according to a U.S. District Court judge, by lying about basic facts.  

Monday’s hearing was about the lying, and the resulting sanctions imposed by U.S. District Court Judge Emily Marks on Assistant Alabama AG Lauren Simpson. The AG’s Office appealed the sanctions, and the 11th Circuit heard arguments on the matter Monday. 

Things did not go well for the AG’s Office during the hearing. Or for ADOC. Or for the state of Alabama as a whole. 

And rightfully so. 

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Because it’s hard to defend the next few paragraphs: 

Alabama wanted to execute convicted murderer Willie B. Smith III, but Smith’s attorneys had filed a challenge claiming that Smith, who is intellectually disabled, was not provided a required explanation – required because of his mental disability – of the form allowing him to choose nitrogen hypoxia as his form of execution. 

In defense, Simpson submitted to the court a brief stating that Smith wasn’t owed an explanation because the form to opt for nitrogen hypoxia – a form distributed to all death row inmates at Holman Prison – wasn’t an official ADOC form or program, but was instead a form passed out by the warden at Holman Prison. And because it wasn’t a form from ADOC, the department wasn’t required to follow ADA guidelines.  

However, in a later deposition, the warden stated that she had been ordered by her superiors to distribute the document in question. And Simpson admitted that she never spoke with the warden prior to making the claim that the warden distributed the document on her own. 

All of that resulted in Judge Marks slapping sanctions on Simpson for “reckless” and “inexcusable” behavior. 

And can I just ask for like the 300th time: What. Are. We. Doing? 

I’d like to remind you that at the center of this absurd story is the execution of a human being. Yes, a human being who once did a terrible thing. But a human whose life we all claim to value, and a human who we stood in judgment of while proclaiming to hold the moral high ground that would allow us to make that judgment and issue a sentence of death. 

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But instead of behaving above reproach, our government – from the legislature to the Department of Corrections to the AG’s office – has conducted itself shamefully. And lazily. And indifferently. And without excuse. 

Let’s start with the Legislature, which passed this ridiculous nitrogen hypoxia law, because some consultant told a braindead lawmaker that getting Alabama’s killing chamber back up and running (remember, Alabama was having a hard time getting drugs to carry out executions in 2018 when this was passed) would make him look tough on crime. He could put it on mailers and brag about it during barbecue dinners at Republican gatherings. 

And so they passed it. Even though 90 percent of the people who voted for it couldn’t tell you what nitrogen hypoxia is. 

Which is exactly the way they treated it. 

When the law arrived at ADOC, it came without instruction. And that was delightful to ADOC, which handled it the way it handles pretty much everything it touches: poorly. 

According to statements made during Monday’s arguments, ADOC higher-ups decided on a policy in which they simply wouldn’t inform anyone about the nitrogen hypoxia option in the hopes no one would know and the department would never have to figure out how it works. 

But someone screwed up. (Or they were lying.)

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Because opt-in forms were passed out to all death row inmates at Holman. 

No one can say where the forms came from. Or who created them. Or who sent them to the warden. Or who told the warden to distribute them. 

Oh, that’s for real. Because that’s what prompted federal Judge Adalberto Jordan to tell Alabama Solicitor General Edmund LaCour, who was arguing against the sanctions on Simpson, that this was all just an absolute “mess.” 

“What a mess the state of Alabama has made by not doing adequate record keeping. What a mess you’ve caused for everybody,” Jordan said. “Nothing on paper. No directions on paper. No record or the log of who turned in these forms regardless of who submitted them. 

“Everything is shrouded in mystery. Maybe that’s the way the state of Alabama wanted it to be. But boy, they’re paying the dues now.”

Let me help the good judge out here: That’s EXACTLY the way the state wants it. 

Because secrecy and legal maneuvering around the laws are what you use when you’re doing bad things. When you’re slicing up a death row inmate’s arms. When you’re trying to deny religious rights. When you’ve employed medical personnel too incompetent to locate a vein for an IV. When you’re covering up deplorable conditions and sickening violence. When you’re hiding murders. 

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It’s so bad that I almost – almost – feel sorry for the AG’s office attorneys who are being forced, by virtue of their jobs, to defend the indefensible. I don’t feel sorry for them, though, because at a point your duty to the people of this state requires that you defend the people who are actually being wronged. And that’s clearly not ADOC. 

A mess? 

Judge Jordan, you don’t even a tiny fraction of it. 

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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