by Leah Nelson, Researcher
In 1972’s Furman v. Georgia, the U.S. Supreme Court ruled that death penalty schemes that led to arbitrary results – for instance, those that allowed similar offenses committed by similar individuals to lead to different sentences – were unconstitutional. The result was a de facto moratorium on the death penalty nationwide, while states worked to make their laws more just.
Four years later, in Gregg v. Georgia, the high court decided that the death penalty itself can be constitutional, provided that it was meted out only in clear, objective, and limited sets of circumstances, reviewable on appeal, and where the sentencer was permitted to take the defendant’s character and history into account when deciding whether to impose a sentence of death.
Fast forward to today 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.
This past legislative session, lawmakers considered a bill that would have created an additional aggravating circumstance. HB 161, sponsored by Rep. Chris Sells (R-Greenville), would have added to both sections, making the murder of a first responder operating in an official capacity a capital offense and adding three victim types – law enforcement officers, first responders, and children under 14 – to the list of aggravating circumstances.
The bill passed in the House, but failed to pass the Senate. It did not become law, nor should it. HB 161 would have expanded Alabama’s broken death penalty system. This fact is no less true today than it was in 2006, when 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.
Since the report’s release in June 2006, the state has executed 29 people. Five of them were killed in the last year alone.
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. Highlighted below are proposed areas for reform that would help to improve the system. Until these reforms are implemented, a temporary moratorium on executions should be imposed.”
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.