sentencing were once again decreasing. By 2010, the number of annual executions fell to less than half the number in 1999. Several states were seriously debating ending the death penalty. New Jersey, New York, Illinois, New Mexico, Connecticut, and Maryland all took capital punishment off the books. Even in Texas, where nearly 40 percent of the nearly 1,400 modern-era executions in the United States had taken place, the death-sentencing rate had dropped dramatically, and the pace of executions had finally slowed. Alabama’s death-sentencing rate had also dropped from the late 1990s, but it was still the highest in the country. By the end of 2009, Alabama had the nation’s highest execution rate per capita.
Every other month someone was facing execution, and we were scrambling to keep up. Jimmy Callahan, Danny Bradley, Max Payne, Jack Trawick, and Willie McNair were executed in 2009. We had actively tried to block these executions, mostly by arguing about the way the executions were being carried out. In 2004, I argued a case at the U.S. Supreme Court that raised questions about the constitutionality of certain methods of execution. States had largely abandoned execution by electrocution, gas chamber, firing squad, and hanging in favor of lethal injection. Viewed as more sterile and serene, lethal injection had become the most common method for the sanctioned killing of people in virtually every death state. But questions about the painlessness and efficacy of lethal injection were emerging.
In the case I argued before the Court, we challenged the constitutionality of Alabama’s protocols for lethal injection. David Nelson had very compromised veins. He was in his sixties and had been a drug addict earlier in his life, making access to his veins difficult. Members of the correctional staff were not able to insert an IV in his arm in order to carry out his execution without medical complications. The Hippocratic oath prevents doctors and medical personnel from participating in executions, so Alabama officials planned for untrained correctional staff to take a knife and make a two-inch incision in Mr. Nelson’s arm or groin so that they could find a vein in which to inject him with toxins and kill him. We argued that without anesthesia, the procedure would be needlessly painful and cruel.
The State of Alabama had argued that procedural rules barred Mr. Nelson from challenging the constitutionality of the protocol. The U.S. Supreme Court intervened. The legal question was whether condemned prisoners could file civil rights actions to challenge arguably unconstitutional methods of execution. Justice Sandra Day O’Connor was especially active during the oral argument, asking me lots of questions about the propriety of correctional staff engaging in medical procedures. The Court ruled unanimously in our favor, deciding that a condemned prisoner could challenge unconstitutional methods of execution by filing a civil rights case. David Nelson died of natural causes a year after we won relief.
Following the Nelson litigation, questions about the drug combination that most states used to carry out lethal injections arose. Many states were using drugs that had been banned for animal euthanasia because they caused a painful and torturous death. The drugs weren’t readily available in the United States, and so states had started importing them from European manufacturers. When the news spread that the drugs were being used in executions in the United States, European producers stopped making them available. The drugs became scarce, which prompted state correctional authorities to obtain them illegally, without complying with FDA rules that regulate the interstate sale and transfer of drugs. Drug raids of state correctional facilities were a bizarre consequence of this surreal drug dealing to carry out executions. The U.S. Supreme Court, in Baze v. Rees, later held that the execution protocols and drug combinations weren’t inherently unconstitutional. The executions would resume.
What that meant for Alabama death row prisoners and EJI staff was seventeen executions in thirty months. It happened at the same time that we were representing children sentenced to life without parole all over the country. I’d flown to South Dakota, Iowa, Michigan, Missouri, Arkansas, Virginia, Wisconsin, and California to argue cases on behalf of condemned children over the preceding months. The courts, procedures, and players were all different, and the travel was exhausting. We were still very actively litigating on behalf of condemned children in Mississippi, Georgia, North Carolina, Florida, and Louisiana—Southern states where we had litigated previously. And, of course, our Alabama docket had never been more jammed or demanding. In a two-week period, I had been in California visiting Antonio Nuñez