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ACLU of Alabama, [email protected] 

January 13, 2023

MONTGOMERY, Ala. – The Alabama Supreme Court is stripping the constitutional rights of those on death row to raise issues on appeal that may have prevented a fair trial, according to a legal analysis by the ACLU of Alabama. 

"The Alabama Supreme Court’s appellate rule change is unnecessary, dangerous, and will lead to wrongfully convicted people being executed,” said Alison Mollman, ACLU of Alabama’s senior legal counsel. 

Alabama has historically permitted appellate courts to review claims from death row prisoners regarding violations of their constitutional rights, even if those claims were not objected to or raised at trial by defense counsel. Alabama does not have a statewide public defender system and ineffective assistance of counsel at trial is a pervasive and systemic problem. The previous rule recognized the essential role of our appellate courts to uphold the constitutional rights of people condemned to death.  

The new rule removes the long-standing requirement that appellate courts consider all constitutional violations that occurred at a condemned person’s trial. In an unprecedented move, the Alabama Supreme Court made this change without guidance from its Rules Committee and over the dissent of multiple Supreme Court Justices. 

Associate Justice Greg Shaw wrote in his dissent, “[A] thorough plain-error review of a death-penalty case on direct appeal serves the interest of both the State and the defendant. Mandatory plain-error review under Rule 45A has existed for 44 years; I see no need for its unsolicited demise.” Associate Justice Kelli Wise wrote in her dissent, “[I]n these cases, the defendants’ very lives are at stake, and I believe that such cases are entitled to heightened review on direct appeal.” 

This new rule was announced alongside several changes to the policies and procedures Alabama uses to manage people on death row. The new rules, which also give Alabama Governor Kay Ivey and the Alabama Department of Corrections unprecedented discretion to schedule executions and set the time to carry out executions, were adopted at the behest of the Governor and without holding a rules committee hearing to discuss the proposals.  

“A majority of people on death row did not receive adequate representation at trial and had attorneys who failed to object to egregious constitutional violations,” said Mollman. “The Alabama Supreme Court’s rule change strips people condemned to death of their ability to have constitutional violations at their trials remedied on direct appeal. A rule change of this magnitude should have been considered by the Rules Committee and should not have passed over the dissent of multiple justices.”  

Learn more about the ACLU of Alabama’s work on smart justice and prison reform at: