A New Report On The Death Penalty In Alabama

Authored by an American Bar Association commission chaired by Alabama law professor Dan Filler, the report does not evaluate the death penalty itself, but criticizes the process by which Alabama executes people. The report is here, the executive summary here, and the chairman's views here.

Regardless of of the propriety of capital punishment itself, no-one should dispute the necessity of fair procedures for carrying it out. That is all the report does; suggest better, more fair ways, for executing people. It identifies several major problems with Alabama's current scheme, not the least of which is the absence of any system to ensure capital defendants have adequate legal representation.

Another problem, perhaps the most glaring one, is this:

The State of Alabama should eliminate judicial override of a jury’s recommendation of life without parole in capital cases.  Alabama is one of only four states that allow such overrides.  Further complicating the issue, Alabama is the only state with such override that selects its judges in partisan elections.  This combination can cause bias or the appearance of bias.  For example, 90% of overrides in Alabama are used to impose sentences of death, but in Delaware, where judges are appointed, overrides are most often used to override recommendations of death sentences in favor of life.  There are at least ten cases in Alabama where a judge overrode a jury’s unanimous, 12-0 recommendation for a life without parole sentence.  

Think about that for a second. Twelve jurors with no personal stake in the outcome heard the state argue for death, and the defendant argue for life. All twelve agreed that death was inappropriate in that particular case. Then a judge, who is going to face an election in a state where the population rabidly supports capital punishment, rejects the jury's unanimous findings. Judicial activism, anyone?

Again, the report does not say the death penalty is good or bad, it just says if the state wants to make sure it only executes people who truly deserve death, it should address these issues. So how does our state's top lawyer – Attorney General Troy King – respond? Typically:

"The ABA is a liberal, activist organization with an agenda they constantly push," King said Friday. "That's why I'm not a member of the ABA."

Yes, Troy you should be proud that you don't belong to an organization that thinks the death penalty should be administered fairly. Only sissy girly men would think things like that. Not big tough manly men like you. Nor should you dignify this wussy organization by, for instance, responding to the merits of the report.  

To be fair, King does try to make one substantive argument. Fair procedures ensure a fair outcome. King tries to turn this around and argue that Alabama's fair outcomes mean Alabama has fair procedures:

"Nobody can point to an innocent person in Alabama who has been executed,"

Maybe not, but they can point to Randal Padget, Gary Drinkard , and Bo Cochran, three men who each spent years (twenty-one in Cochran's case) on Alabama's death row before being acquitted in new trials. So we know at least three people erroneously ended up on death row. They were lucky to find good lawyers to handle their appeals, and good lawyers to handle the new trials. What of all the other convicts who are not so lucky? Shouldn't we be just a bit curious about whether these three are isolated incidents of part of a larger problem?

Death penalty reform is a serious but politically unpopular issue. Simple minded people, like Troy King, will see any criticism of the system as criticism of the penalty itself. However, a broken system will produce broken results. In the case of capital punishment that means executing people who do not deserve death. Perhaps even executing innocent people. 

Fixing this situation will require leadership and courage from our elected officials. It will require the insight to see that fixing the system does not necessarily mean getting rid of the penalty.

These are virtues Troy King, apparently, does not possess. He'd rather stoop to the lowest levels and accuse anyone who questions the death penalty of being soft on crime. In so doing he exposes himself as a legal hack; a man more interested in scoring political points that in doing justice. In short, when it comes to capital punishment Troy King is a man who would never let the truth stand in the way of his convictions.

In contrast to King's hissy fit, his opponent in the A.G. election, John Tyson, offers a reasonable response:

Mobile County District Attorney John Tyson Jr., said he hopes the assessment team's report fosters public discussion."I believe the communication of information about the death penalty process and public debate of components of this process is the only way to assure that the death penalty is fair, accurate and timely and therefore an effective deterrent to heinous acts."

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5 Comments on “A New Report On The Death Penalty In Alabama”


  1. […] While I know very little about this issues, it does seem there is a general consensus from among lawyers that reform is much needed. Wheeler at Alablawg has some very interesting points on this issue. Death penalty reform is a serious but politically unpopular issue. Simple minded people, like Troy King, will see any criticism of the system as criticism of the penalty itself. However, a broken system will produce broken results. In the case of capital punishment that means executing people who do not deserve death. Perhaps even executing innocent people. […]


  2. […] Think about it for a moment. All that money being spent, supplied mostly by trial lawyers and businesses, for the election of an “impartial” arbiter. Now think about another fact (h/t to Alablawg). Alabama is the only state that elects judges in partisan elections that also allows a judge to over-ride the sentencing suggested by the jury in a capital case. That means that, even if the jury reccommends life in prison, the judge can say, “No, he gets the chair.” (lethal injection, actually, but chair sounds more scary). […]

  3. Kathy Says:

    Yet another reason I’ll be voting for Tyson. Troy King really should learn to engage his brain before he opens his mouth, although that might not help much.


  4. […] Perhaps having attended the Troy King school of dealing with public criticism, John Giles responds to Alvin Holmes not by answering the charges, but by throwing around meaningless political terms. After a Montgomery lawmaker told him to go someplace warm and fiery, the head of the Christian Coalition of Alabama responded with a word that is considered dirty in some political circles: Liberal. […]


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