Does a state violate a prisoner's right to due process and equal protection of the laws when it complies with an execution related statute for some prisoners facing execution, but does not for other prisoners facing execution?

QUESTION PRESENTED In response to repeated failures of the Alabama Department of Corrections (“ADOC”) to timely execute prisoners, or execute them without torturing them, Governor Kay Ivey ordered a “top to bottom review” of the process. The review concluded that the issue was not the competency of the execution team, but the time allotted to carry out the execution. Following this review, the Alabama Supreme Court transferred to the Governor the responsibility for setting the actual execution, and allowed the Governor to set a range of days for the execution. However, the Alabama legislature did not change the statute requiring a minimum of 30 days’ notice of an execution date. Here, the Governor gave Mr. McWhorter only 29 days’ notice of his execution. Mr. McWhorter asked the Alabama Supreme Court to vacate the execution date, arguing that he has been treated differently from every inmate before him in the modern era of the death penalty. The court refused. This set of facts leads to the following question presented: Does a state violate a prisoner’s right to due process and equal protection of the laws when it complies with an execution related statute for some prisoners facing execution, but does not for other prisoners facing execution?