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Broken Justice: the Death Penalty in Alabama

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Broken Justice: the Death Penalty in Alabama An ACLU Report Broken Justice: The Death Penalty in Alabama Published October 2005 THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and the laws of the United States. OFFICERS AND DIRECTORS Nadine Strossen, President Anthony D. Romero, Executive Director Richard Zacks, Treasurer National Office 125 Broad Street, 18th Fl. New York, NY 10004-2400 (212) 549-2500 www.aclu.org Acknowledgements As in any major undertaking, producing a report of this size is a collaborative effort. The primary author of Broken Justice is Rachel King with the assistance of several ACLU Capital Punishment interns, most notably: Katie Dahlen, Liza Grote, Katherine Grubbs, and Claire Lunman. The database that formed the backbone of this report came primarily from Lucia Penland of the Alabama Prison Project. It was expanded and improved upon by Olivia Turner, Kimberly Parker, and Kathanna Culp of the ACLU of Alabama. Also, Jim Carnes and Kimble Forrister of Alabama Arise contributed significantly to writing and editing. Sponsoring Organizations: Alabama Arise Alabama CURE Alabama Committee to Abolish the Death Penalty Alabama Democratic Conference American Civil Liberties Union of Alabama Alabama New South Coalition Alabama Prison Project Amnesty International NAACP of Alabama Project Hope to Abolish the Death Penalty Restorative Justice Team, North Alabama Conference, United Methodist Church Paid for by the American Civil Liberties Union Foundation. Broken Justice: The Death Penalty in Alabama An ACLU Report Table Of Contents I. Overview........................................................................................................................ 1 II. The State of Alabama Does Not Provide Adequate Indigent Defense........................ 4 A. Inadequate qualifications for capital defense lawyers.................................... 5 B. Inadequate compensation for capital defense lawyers .................................. 5 C. Post-conviction procedural constraints .......................................................... 6 III. Innocent People Have Been Wrongfully Convicted and Possibly Executed .............. 7 A. Alabama death row exonerees ........................................................................ 7 B. Possibly innocent people who have been executed ........................................ 8 C. Contribution of DNA testing to exonerations ..................................................13 IV. The High Cost of the Death Penalty ..........................................................................14 V. Prosecutorial Misconduct............................................................................................14 VI. Judicial Overrides and Death Sentencing..................................................................17 VII. Mentally Retarded Defendants and the Death Penalty ............................................18 VIII. Mental Illness and the Death Penalty......................................................................19 IX. Juveniles and the Death Penalty................................................................................20 X. Race and the Death Penalty ........................................................................................21 A. Batson issues ..................................................................................................22 B. Triggerman issues ..........................................................................................22 XI. Conclusions and Recommendations..........................................................................22 Entnotes ..........................................................................................................................24 Broken Justice: The Death Penalty in Alabama An ACLU Report Broken Justice: The Death Penalty in Alabama I. Overview highest death-sentencing rate.6 In 1999 Alabama sentenced more people to death per Of all the actions carried out by the state, none capita than any other state.7 Yet, unlike many warrants more cautious implementation and states, Alabama has no statewide public stringent review than the imposition of the death defender system. At least 30 current death row penalty. Yet in Alabama, this most solemn prisoners have no lawyer.8 Alabama's death row responsibility remains fraught with inconsisten- occupants are overwhelmingly poor — 95 per- cies and inequities. The structure of the state's cent are indigent — and minority.9 criminal justice system and the power given to its trial and appellate judges compromise and The modern era death penalty statutes were limit the ability of capital defendants to get a fair supposed to guarantee that the process was fair trial and appropriate sentencing. and non-discriminatory. One way of ensuring accuracy was to create a bifurcated process. In 1972, the U.S. Supreme Court struck down all First, there must be a trial to determine guilt. death penalty statutes in the United States on the This is followed by a penalty-phase evidentiary grounds that the way the penalty was applied hearing to determine the appropriate sentence. was arbitrary, capricious and discriminatory.1 In Alabama, the jury's determination at the This resulted in the commutation of the sen- penalty phase is a recommendation as to tences of all 629 death row inmates, sending whether to impose a death sentence. However, states scrambling to rewrite their capital punish- the final decision rests with the trial judge who ment statutes. Four years later, the Court upheld holds a third phase, sentencing hearing.10 In newly crafted death penalty statues.2 Executions order to obtain a jury recommendation of a resumed in 1977; as of August 2005,3 981 peo- death sentence, the state must prove beyond a ple have been executed.4 The period after 1976 is reasonable doubt at least one aggravating fac- referred to as "the modern death penalty era." tor.11 The defendant may introduce any mitigat- ing factors that are relevant. If the jury finds an During this same time period, Alabama has aggravating factor, it must decide whether any executed 33 individuals, including three in mitigating factors outweigh the aggravating 2005: Mario Giovanni Centobie on April 28, factor. If a jury finds the aggravating factors Jerry Paul Henderson on June 2, and George exist and that they outweigh the mitigating fac- Sibley on August 4. Seven people have died on tors, the jury may vote to recommend a death Alabama's death row before their scheduled sentence. If not, the jury recommends life. The execution date - three from suicide.5 vote is not required to be unanimous. No mat- ter what the vote is, the case proceeds to the The Death Penalty Information Center has cal- third phase, of the judge sentencing. Even if all culated that Alabama has the 6th highest exe- jurors vote to recommend life, the judge may cution rate in the country as well as the 6th impose a death sentence. The judge is required 1 Broken Justice: The Death Penalty in Alabama to enter a written fact summary into the record • Inadequate defense: Alabama has no in order to explain the final sentence imposed statewide public defender system. Court- on the defendant. appointed defense attorneys are paid at $40 an hour for time spent outside court Despite the Gregg decision, the death penalty and $60 for time spent in court, signifi- process remains flawed in Alabama, as in many cantly below the market rate for lawyers in states. The problems are widespread and reach private practice. Judges routinely do not into many facets of Alabama's capital punish- pay lawyers the entire bill for work done ment and criminal justice systems. A July 2005 in the case. One lawyer said the court paid poll by the Capital Survey Research Center him the equivalent of $4.98 per hour to found that 57 percent of Alabamians have con- defend his client's life. Studies by legal cerns about the fairness of the death penalty experts have documented severe short- and would support a moratorium — or a tem- comings among these poorly paid lawyers, porary halt — of executions while questions of including lawyers who fail to investigate fairness and reliability are studied. The same the crime or their clients' background or to poll found that 80 percent think that the current prepare cross-examination or argument death penalty process could result in the execu- for trial.13 tion of an innocent person.12 • Prosecutorial misconduct: Prosecutorial This report documents unfairness and unrelia- misconduct taints judicial proceedings. bility that plague the death penalty system in Between 1973 and 2003, Alabama appellate Alabama and makes several recommendations, courts found 325 instances of prosecutorial including a moratorium on executions. The misconduct. Sixty-nine cases were reversed major areas of focus the report examines are: because of prosecutorial misconduct. Table 1 Comparison of Top 10 Counties with the Largest Number of Death Penalty Cases (Since 1976) with their Population and Number of Murders # of Death Penalty % % # of % County Cases overall Population overall Murders overall Jefferson . .27 . .13.4 . .620,918 . .13.9 . .79 . .26 Mobile . .26 . 9.4 . .380,878 . 8.5 . .52 . .17.2 Montgomery . .23 . 8.3 . .225,490 . 5.0 . .31 . .10.2 Talladega . .17 . 6.2 . 80,638 . 1.8 . 1 . <1 Houston . .17 . 6.2 . 84,675 . 1.9 . 1 . <1 Morgan . .10 . 3.6 . .109,841 . 2.5 . 5 . 1.6 Baldwin . 9 .
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