The death penalty in Alabama applies only to a narrow set of intentional killings the state calls “capital murder,” and even a capital conviction does not automatically produce a death sentence. A jury decides the sentence in a separate penalty phase, and Alabama is one of only two states that allow a death sentence on a non-unanimous vote. If death is imposed, the state carries it out by lethal injection unless the inmate elects nitrogen hypoxia or electrocution. Every death sentence triggers years of appeals through state and federal courts, with clemency from the governor as the final possible step.
What Qualifies as Capital Murder in Alabama
Not every homicide is death-eligible. Alabama’s capital offense statute lists roughly twenty categories of murder that qualify, and each requires an intentional killing combined with an additional aggravating element.1Alabama Legislature. Alabama Code Title 13A Criminal Code Section 13A-5-40 Capital Offenses The most commonly charged include:
- Murder during a robbery, kidnapping, rape, sodomy, burglary, or arson.
- Killing a law enforcement or corrections officer on duty or because of the job. The officer does not have to be in uniform.
- Killing two or more people in a single act or as part of a single plan.
- Murder committed by an inmate already serving a life sentence.
- Murder using a bomb or other explosive device.
- The intentional killing of a child under 14.
The statute also reaches murder-for-hire from both sides of the transaction, the killing of a witness to prevent testimony, and the killing of a judge or prosecutor tied to their official duties.
Alabama’s felony murder rule broadens the reach of these charges. A person who took part in one of the listed felonies can face capital murder even if they did not personally kill anyone. An accomplice who served as a lookout during a robbery in which someone died can be charged the same as the person who fired the shot. Alabama has executed people under this theory and has scheduled executions in recent years for defendants whose co-defendants did the actual killing.
How a Death Sentence Is Decided
A guilty verdict on a capital charge is only the first half of a capital trial. After conviction, the case moves into a penalty phase where the same jury hears evidence and arguments about whether the defendant should be sentenced to death or to life without parole.
Aggravating and Mitigating Factors
The prosecution presents aggravating circumstances drawn from a specific statutory list. These include that the murder was committed during another felony, that the defendant created a great risk of death to many people, that the killing was especially heinous or cruel, or that the defendant had prior violent felony convictions. Jurors may weigh only aggravating factors the statute names.
The defense presents mitigating circumstances, and here the list is not closed. Alabama’s code identifies factors such as no significant criminal history, extreme mental or emotional disturbance, a minor role as an accomplice, extreme duress, substantially impaired capacity, and the defendant’s age at the time of the crime.2Alabama Legislature. Alabama Code 13A-5-51 – Mitigating Circumstances Defense attorneys can also offer anything else that argues against death, including childhood abuse, mental illness, military service, or evidence of rehabilitation.
The 10-2 Jury Rule
Conviction at trial requires all twelve jurors to agree. Sentencing does not. Alabama allows a death sentence on a vote of ten to two. Eleven-to-one is enough. Seven-to-five for death is not. As of 2025, Alabama and Florida are the only two states that permit non-unanimous death sentencing; every other death-penalty state requires all twelve jurors to agree.
The rule shapes outcomes. In 2025, every new death sentence in Alabama came from a jury that was not unanimous. Bills to require unanimity have been introduced in the state legislature and have repeatedly failed to advance.
The End of Judicial Override
Until 2017, an Alabama trial judge could override a jury’s recommendation of life without parole and impose death anyway. Alabama was the last state to permit this. Governor Kay Ivey signed SB 16 in April 2017 to end the practice for future cases. The law was not retroactive, so people sentenced to death by judicial override before 2017 remain on death row under those sentences, and the situation continues to produce legal challenges.
Who Cannot Be Executed
Federal constitutional rulings place several categories of defendants outside the reach of any state’s death penalty, Alabama included.
- Anyone who was under 18 at the time of the crime, under Roper v. Simmons (2005).3Justia. Roper v. Simmons
- People with intellectual disability, under Atkins v. Virginia (2002).4Justia. Atkins v. Virginia
- Prisoners who cannot rationally understand why the state is executing them, whether from psychosis, dementia, or another condition, under Madison v. Alabama (2019).5Justia. Madison v. Alabama 586 U.S. 17-7505
Alabama prosecutors cannot seek death against a juvenile offender, and capital defense teams regularly raise intellectual disability and competency claims to block execution.
How Alabama Carries Out Executions
Alabama authorizes three execution methods. Lethal injection is the default; a death-sentenced inmate is executed by lethal injection unless they affirmatively elect electrocution or nitrogen hypoxia.6Alabama Legislature. Alabama Code 15-18-82.1 – Methods of Execution, Election of Method, Constitutionality
Lethal Injection
Alabama uses a multi-drug sequence but does not publicly identify the drugs, citing supplier confidentiality laws. The secrecy has generated recurring litigation. The state has also faced serious procedural problems, including executions in which medical staff could not establish IV access, producing lengthy and reportedly painful attempts. Several executions were called off entirely because of those difficulties.
Nitrogen Hypoxia
Alabama authorized nitrogen hypoxia in 2018, becoming the third state to do so after Oklahoma and Mississippi. The method replaces breathable air with pure nitrogen, causing oxygen deprivation, unconsciousness, and death. On January 25, 2024, Alabama executed Kenneth Eugene Smith using nitrogen gas, the first time any U.S. government used the method. Witnesses reported that Smith appeared to remain conscious for several minutes, shaking and writhing during the procedure. Alabama has since used nitrogen hypoxia multiple times and is the only state to have actually carried out executions with it. Human rights organizations have criticized the method, and it has drawn legal challenges, but courts have not blocked its continued use.
Electrocution
Alabama switched from electrocution to lethal injection as the default in 2002, but the electric chair at Holman Correctional Facility remains operational and any death row inmate can elect it.7Alabama Legislature. Alabama Code 15-18-82 – When, Where, and by Whom Executions Conducted It is rarely chosen. If lethal injection is ever held unconstitutional or becomes unavailable, the statute directs that nitrogen hypoxia becomes the default, so at least one method always remains legally available.
Appeals After a Death Sentence
Every Alabama death sentence triggers an automatic appeal. No one is executed on a trial court verdict alone. The full process moves through several stages and typically takes years, sometimes decades.
Direct Appeal
The case first goes to the Alabama Court of Criminal Appeals, which reviews the trial record for legal errors, improper jury instructions, evidentiary problems, and constitutional violations. The defendant does not have to ask for this review. If the Court of Criminal Appeals affirms, the defendant can petition the Alabama Supreme Court and then the U.S. Supreme Court, though the U.S. Supreme Court accepts only cases raising significant federal constitutional questions.8Alabama Attorney General. Alabama Death Penalty Appeals Process
Rule 32 Post-Conviction Relief
Once direct appeals are exhausted, an inmate can file a petition under Rule 32 of the Alabama Rules of Criminal Procedure. This separate proceeding allows claims the direct appeal could not reach, most commonly ineffective assistance of trial counsel. Under Strickland v. Washington, the defendant must show both that the attorney’s performance fell below a reasonable standard and that the errors likely changed the outcome.9Justia. Strickland v. Washington Rule 32 petitions can also raise prosecutorial misconduct or introduce newly discovered evidence, including DNA results or recanted testimony. Unlike a direct appeal, Rule 32 can bring in new facts.
Federal Habeas Corpus
When state remedies are finished, the final judicial avenue is a federal habeas corpus petition filed in U.S. District Court, arguing that the conviction or sentence violates the federal Constitution. Federal habeas review is governed by the Antiterrorism and Effective Death Penalty Act of 1996, which limits federal courts to granting relief only where the state court’s decision was an unreasonable application of clearly established Supreme Court precedent or was based on an unreasonable reading of the facts. AEDPA also imposes a one-year filing deadline that generally starts when the direct appeal becomes final and pauses while a properly filed state post-conviction petition is pending.10Office of the Law Revision Counsel. 28 USC 2244 – Finality of Determination A district court denial can be appealed to the Eleventh Circuit and potentially to the U.S. Supreme Court, but success rates are extremely low at each stage.
Clemency as the Last Step
After courts are done, the only remaining route is executive clemency. In Alabama, the governor holds the power to grant reprieves, commutations, and pardons in capital cases. Under the state constitution, a board consisting of the attorney general, secretary of state, and state auditor reviews clemency petitions for felony cases and provides a written recommendation. The governor may then grant or deny clemency.11Justia. Alabama Constitution – Section 124 The Board of Pardons and Paroles, which handles most Alabama inmates, has no authority over cases in which a death sentence has been imposed.12Alabama Legislature. Alabama Code 15-22-36 – Authority to Grant Pardons and Paroles, Remit Fines and Forfeitures Capital clemency rests with the governor alone.
It rarely happens. Since Alabama reinstated capital punishment, governors have granted clemency in death penalty cases only twice. Governor Fob James commuted the death sentence of Judith Ann Neelley in January 1999 as one of his final acts in office, without publicly explaining his reasons. More than 25 years passed before the next commutation, on February 28, 2025, when Governor Kay Ivey commuted the sentence of Robin “Rocky” Myers, an intellectually disabled inmate, to life without parole. Petitions typically emphasize wrongful conviction claims, mental illness, intellectual disability, or fundamental unfairness at trial, and sometimes include statements from jurors or prosecutors who have reconsidered. The governor is not required to hold a hearing or provide reasons for denial.