Opinion by Mike Hobson
February 26, 2023
Ask the man on the street in Alabama, or venture into the world of social media for your opinion shaping, you may find that our state population usually speaks quickly and forcefully in favor of the death penalty for the perpetrators of our most violent and heinous crime.
According to the Pew Research Center, the use of the death penalty is gradually disappearing in the United States. Yet the death penalty for people convicted of murder continues to draw support from a majority of Americans despite widespread doubts about its administration, fairness and whether it deters serious crimes.
More Americans favor than oppose the death penalty: 60% of U.S. adults favor the death penalty for people convicted of murder, including 27% who strongly favor it. About four-in-ten (39%) oppose the death penalty, with 15% strongly opposed, according to the Pew.
According to the Death Penalty Information Center “about 40 percent of the states have ended the use of capital punishment. Of the remaining states that retain it, only a few use it on a regular basis. The murder rates of states with and without the death penalty are relevant to whether it is justified.”
There are strong arguments against the death penalty and the continuation of capital punishment. Alabama is no exception as recent scheduled executions have been interrupted for reasons we detail below.
Given the fallibility of human judgment, there has always been the danger that an execution could result in the killing of an innocent person. However, as federal courts began to more thoroughly review whether state criminal defendants were afforded their guaranteed rights to due process, errors and official misconduct began to regularly appear, requiring retrials. Since 1973, more than 190 former death-row prisoners have been exonerated of all charges related to the wrongful convictions that had put them on death row.
There are plenty of examples of overturned death penalty cases due to errors, flawed testimony, prosecutorial or police misconduct, and of course, newly available DNA evidence that exonerated convicted defendants. For detailed stories you might refer to the Alabama Appleseed Project or the Death Penalty Information Center.
Take the case of Toforest Johnson who spent 24 years on Alabama’s death row or the Flowers case from neighboring Mississippi.
Curtis Flowers was tried six times for a quadruple-murder in Winona, Mississippi. Four of the trials resulted in convictions and death sentences imposed by all-white or nearly all-white juries. Each conviction was overturned for prosecutorial misconduct. The two other trials ended in hung juries, with every white juror voting to convict and every Black juror voting to acquit.
In 2019, the U.S. Supreme Court overturned Flowers’ conviction in his sixth trial.” In January 2020, the former DA voluntarily recused himself from Flowers’ case, writing that his “continued involvement will prevent the families from obtaining justice and from the defendant being held responsible for his actions.”
In September 2020, Flowers was officially exonerated when Mississippi Attorney General Lynn Fitch, who took on the case after the recusal, dropped charges against him. Flowers spent 23 years wrongfully imprisoned, most of it on death row at the Mississippi State Penitentiary at Parchman. After his exoneration, Flowers stated, “Today I am finally free from the injustice that left me locked in a box for nearly 23 years.”
ALABAMA’S DEATH PENALTY
Leah Nelson of Alabama Appleseed Project reported in 2018 on the state of executions in Alabama.
There are 19 capital offenses under Alabama law – each a distinct type of murder for which the death penalty can be sought. There are also 10 aggravating circumstances, which can be offered to a jury for consideration as it decides whether or not to impose a death sentence after finding a defendant guilty. Between them, the two sections make it possible for almost any homicide, committed under nearly any circumstance, to result in a death sentence.
In 2006, eight distinguished Alabama attorneys comprising the American Bar Association’s Alabama Death Penalty Assessment Team concluded, bluntly, that “the State cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed.”
In its report, the ABA Assessment Team identified seven problem areas in desperate need of reform, including:
- Inadequate indigent defense services at trial and on direct appeal;
- Lack of defense counsel for state post-conviction proceedings;
- Lack of a statute protecting people with intellectual disabilities from execution;
- Lack of a post-conviction DNA testing statute
- Inadequate proportionality review (i.e., inadequate review of disparities in imposition of the death penalty across socio-economic, geographic, racial, or other lines);
- Lack of effective limitations on the “heinous, atrocious, or cruel” aggravating circumstance (i.e., a failure to require prosecutors to prove that a particular capital murder was grimmer than most before invoking this aggravator); and
- Capital juror confusion (specifically, research at the time showed that a majority of Alabama capital jurors interviewed misunderstood basic principles about their role and responsibility with regard to deciding whether a death sentence was called for, suggesting that jurors are recommending death sentences based on serious legal errors).
To date, the state has implemented only one of the assessment team’s primary recommendations – the elimination of an Alabama law that allowed judges to override jury recommendations of life without parole in favor of death. The rest have languished, while the state’s machinery of death chugs grimly along.
The ABA Assessment Team in 2006 called on Alabama to impose a moratorium on executions. As they stated:
“Regardless of one’s feelings about the morality of the death penalty, we all understand that, as a society, we must do all we can to ensure a fair and accurate system for every person who faces the death penalty. When a life is at stake, we cannot tolerate error or injustice. The Alabama Death Penalty Assessment Team found a number of problems in the state’s death penalty system that undermines its fairness and accuracy.
2023 IN ALABAMA
According to multiple news reports, Gov. Kay Ivey ordered a halt to executions in Alabama in November 2022, after a series of failed attempts at lethal injections in the state. She also called for a moratorium as she ordered a top to bottom review of the state’s execution process. She called for Attorney General Steve Marshall to withdraw pending motions filed with the state’s Supreme Court to set executions for Alan Eugene Miller and James Edward Barber.
The moratorium came after Alabama decided to abandon the scheduled execution of Kenneth Eugene Smith after the execution team could not find a vein to complete the lethal injection before his death warrant expired at midnight after a last-minute legal battle that reached the Supreme Court.
On Feb 4, 2023 Alabama lifted its moratorium on executions after the completion of an investigation into a series of botched executions last year.
Alabama Department of Corrections Commissioner John Hamm said he has competed a “top-to-bottom” review of the death penalty in the state, which was ordered in November by Gov. Kay Ivey following failed execution attempts in November.
“Upon receiving word from Commissioner Hamm, Gov. Kay Ivey asked Attorney General Steve Marshall to ask the Supreme Court to issue an execution warrant for an eligible death row inmate whenever he deems appropriate,” said the governor’s communications director Gina Maiola. Death-row inmate James Barber could be the first to be executed.
ADOC Commissioner John Hamm shared the findings of the review in a letter addressed to Governor Kay Ivey. A large problem with the executions was establishing a vein line for lethal injection. There were four main updates to the state execution protocol:
- Extending the allotted timeframe for the state to complete executions from a single-day execution warrant. Commissioner Hamm says the extension will make it harder for inmates to “run out the clock” with last-minute appeals.
- ADOC will hire new outside medical personnel for executions.
- ADOC has “ordered and obtained” new equipment that is available to use in future executions
- The Department had “multiple rehearsals” of the execution process in recent months
ADOC said they have no statement in addition to the letter provided by Commissioner Hamm. There are many unanswered questions and concerns, according to Richard Dieter, executive director of the Death Penalty Information Center.
There is also concern about the swiftness of this review.
“When the governor announced a moratorium on executions last year, we believed her when she said that the state would conduct a thorough investigation of the Alabama Department of Correction’s execution protocols before resuming,” said JaTaune Bosby Gilchrist, ACLU of Alabama’s executive director. “Unfortunately, the governor refused to follow the lead of her Republican colleagues in other states and order an independent review. Throughout this process, we have argued that it is unreasonable to believe that the agency responsible for botching multiple executions can thoroughly investigate itself and suggest remedies to correct its own behavior. Today’s announcement that ADOC’s investigation is complete is troubling and proves our worst concerns. It is irresponsible to believe that the state-sponsored torture of individuals would end if given more time and practice.”
Ivey addressed a letter to Attorney General Steve Marshall requesting him to “ask the Supreme Court to issue an execution warrant for an eligible death row inmate.” Marshall filed an execution warrant for death-row inmate James Barber and issued the following statement:
“I am pleased that Governor Ivey and the Department of Corrections have completed their review of their execution processes and feel confident that the travesty of justice that occurred in November of last year will not be repeated. As I have made clear, I and my office have remained fully committed to and capable of carrying out capital punishment in Alabama. Accordingly, my office immediately filed a motion today with the Alabama Supreme Court to set an execution date for death-row inmate James Barber, and we will be seeking death warrants for other murderers in short order. In Alabama, we recognize that there are crimes so heinous, atrocious, and cruel, so exceptionally deprave, that the only just punishment is death. Those on death row—as well as their victims—can be certain that I and my office will always do our part to ensure that they receive that just punishment.”
Mike Nicholson, a policy analyst with Alabama Arise, hopes there is legislative action to further address the state’s execution protocol.
“We also recommend making the judicial override bill that Governor Ivey signed in 2017 retroactive,” said Nicholson. “Alabama is the only state that doesn’t provide funding for those processes. Every other state that has the death penalty provides some sort of funds set up so that folks on death row can appeal.”
Alabama’s death penalty system still in need of reforms
Alabama Arise executive director Robyn Hyden released the following statement Friday in response to Gov. Kay Ivey’s announcement that an internal review of executions in Alabama has ended:
“All Alabamians deserve equal justice under the law. Unfortunately, the Department of Corrections’ internal review of the state’s execution process did not resolve many of the injustices that remain throughout our capital punishment system.
“The department still needs to pull back the curtains and provide greater public transparency on execution procedures. Legislators must do their part as well to reduce the unfairness of Alabama’s death penalty. An important first step would be retroactively applying the state’s 2017 ban on judicial override, a practice that allowed judges to impose death sentences despite a jury’s recommendation otherwise.
“Lawmakers also should require unanimous agreement from jurors to sentence someone to death. And Alabama should provide state funding for appeals of death sentences, as other states with capital punishment do.
“Our state’s death penalty is broken and should be abolished. Short of that, these policy changes would be important steps to reduce the inequities that pervade capital punishment in Alabama.”
Appleseed writer Leah Nelson wrote this about the death penalty:
“The virtues of the death penalty may be debatable, but the merits of fairness and accuracy are not.”
“The state of Alabama should not carry out one more execution, nor tinker further with its death penalty laws, until and unless it addresses the gaps that led the ABA team, over a decade ago, to condemn the system’s failures.”
“Who can bear the burden of consciousness when an innocent man is executed by the State ? How can our society claim that the death penalty is fair and final justice for a convicted defendant when we know how many death row sentences have been overturned in recent years.”
THE WORLD VIEW OF ALABAMA
Alabama leadership in government, business, and society has worked tirelessly and effectively to bring the State into the world spotlight. Thirty successful years have resulted in Alabama becoming known in the world of manufacturing. Beginning with the arrival of Mercedes-Benz in the early 1990’s Alabama has drawn the attention of industry giants, and become the world’s largest exporter of fine automobiles. Alabama has also demonstrated leadership with the growth and improvements of its Mobile seaport and with the space and rocket reputation centered in the Huntsville area.
While Alabama has worked hard to draw attention away from its negative history, its record of racial and social injustices still color many contemporary conversations and distort the world view of our great state. Our unflattering past remains indelible upon our memories and our history, so perhaps we should all take a hard look at where we have been. Negative reflections of our state history are so ingrained in the national consciousness that we now have a memorial and museum designed to keep those memories alive.
“Located on the site of a former warehouse where Black people were forced to labor in Montgomery, Alabama, this narrative museum uses interactive media, sculpture, videography, and exhibits to immerse visitors in the sights and sounds of the slave trade, racial terrorism, the Jim Crow South, and the world’s largest prison system. Compelling visuals and data-rich exhibits provide a one-of-a-kind opportunity to investigate America’s history of racial injustice and its legacy — to draw dynamic connections across generations of Americans impacted by the tragic history of racial inequality.”
Whatever your view of our history and today’s topic, there is still much work to do in Alabama to tamp down the negatives and continue to build upon the positives our state has to offer in the 21st Century. The mention of the national monument and museum here is just a reminder of what we must overcome. One of those concentration areas for improvement has to be in our system for the incarceration of criminals and the administration of humane justice.
SHOULD ALABAMA’S DEATH PENALTY BE ELIMINATED ?
The immutable truths that are being exposed with today’s advanced scientific analysis of available DNA evidence is groundbreaking and can be life altering in so many ways. With every modern news cycle the flaws and fallibilities in our law enforcement and criminal justice system are publicly revealed and examined.
While miscarriages of law are low and infrequent the administration of a death penalty must be error free. Is our contemporary society willing to continue to place complete unquestionable faith in a criminal justice system and entrust our present system to decide if a defendant goes to the gallows ?
Recall the words of Curtis Flowers, the Mississippi case reported in this article, “Today I am finally free from the injustice that left me locked in a box for nearly 23 years.” Does it give you pause to consider what mental burdens the members of the six juries that convicted Curtis Flowers are shouldering today ?
Yes, convicted violent criminals deserve harsh punishment. We unquestionably support law enforcement and our judicial system, when it works as designed to maintain a free and orderly society. But in my view, even a single wrongful execution of another human being in the name of justice, is unacceptable. There is no lawful appeal or remedy from a wrongful execution.
Humane incarceration and the removal from our society of violent criminals is an expensive necessity that the state, and the taxpayer, must forever willingly bear. Alabama has a long road to travel to correct the system of incarceration now in place.
Finally, the unwavering presence of society’s guardrails intended to prevent the execution of an innocent man while fairly and humanely punishing the guilty must not be eroded.
THIS ARTICLE CONTAINS OPINIONS OF THE AUTHOR THAT ARE HIS OWN. THE PUBLISHER NEITHER ENDORSES OR REJECTS THE OPINIONS OF THE AUTHOR . THE PUBLISHER ENDORSES THE CONSTITUTION OF THE U.S. INCLUDING THE BILL OF RIGHTS AND THE RIGHTS GIVEN TO FREE MEN AND JOURNALISTS UNDER THE FIRST AMENDMENT, TO EXERCISE CIVILIZED FREE SPEECH AND TO FREELY AND OPENLY DISCUSS VARYING OPINION IN THE PUBLIC SQUARE.