Alabama Voices: Dare Defend Rights of All
I love Alabama. It pains me to see my home state cited with disapproval, when we have so much that is good to offer.
A report issued in May by Philip Alston, a special investigator for the United Nations, identified Alabama as the U.S. state with the highest per capita rate of executions. He tied our execution rate to the fact we elect our judges, noting research that shows judges are more likely to either impose or refuse to reverse death sentences when elections are imminent and tightly contested, when capital punishment support groups are active within a state and when judges have experience in seeking elective office.
It is not news that the politics of electing our state’s judges affects our death penalty rates. Just three years ago, the American Bar Association released an assessment of our death penalty jurisprudence, conducted by a team of our own state’s legal leaders — a law professor, a state senator, a district attorney, a law school dean who also was a former federal magistrate and four lawyers in private practice.
That team acknowledged that judicial candidates sometimes campaign on a pro-death penalty platform.
Key among a series of recommendations by the assessment team was that Alabama reform its “judicial override” provision permitting trial judges to override jury recommendations on sentencing.
While other states provide for override, most limit judges to reducing the sentence. Alabama is one of only three states that allow judges to impose a death sentence when the jury recommended life in prison, and the only one among them that also selects its judges in partisan elections.
The combination can create pressure for a judge to sentence a person to death for reasons having little to do with the circumstances of the crime or the characteristics of the offender.
The team enumerated other individual problems with Alabama’s death penalty. Our state failed to fully comply with 51 of the 79 ABA recommendations describing the manner in which a fair and accurate capital punishment system should operate, including such broad areas as adequate indigent defense, lack of standards for identifying mental retardation, post-conviction DNA testing and inadequate jury instructions.
Any of those shortcomings, taken alone, is serious enough to cause concern. But the harms of such problems are cumulative, prompting the assessment team to urge the state to launch a full-bore, government-sponsored analysis of how we investigate, prosecute, defend, judge and sentence in capital cases, and how we conduct post-conviction reviews and clemency proceedings.
That study is a life-and-death necessity. The team of Alabamians made a start on that analysis, but much of the data needed for a thorough and informative review was not accessible to those volunteers.
The team also recommended key reforms to establish a death penalty data clearinghouse, require juries to be unanimous if they recommend a death sentence, create a statewide indigent defense commission, and research possible disparities in socio-economic status, race, geography and other factors of sentencing.
Alabama has a truly stirring motto: “We dare defend our rights.” Isn’t it time that we dared to defend the rights of all our citizens, even those accused of capital crimes?
H. Thomas Wells Jr. is president of the American Bar Association and a partner in the Birmingham office of Maynard, Cooper and Gale.
Published in The Montgomery Advertiser.