On Jan. 25, Alabama’s governor approved killing Kenneth Smith by nitrogen gas — something the United Nations said ”will likely violate the prohibition on torture and other cruel, inhuman or degrading punishment” in violation of International Human Rights Law.
Alabama’s use of an experimental method of execution is an outrage. But what is more outrageous is that “in the heart of Dixie,” Alabama is still executing people using laws linked to racism.
Kenneth Smith wasn’t sentenced to death by a jury as required by the U.S. Constitution but by a judge, a practice outlawed even in Alabama. His jury voted 11 to 1 for life in prison, yet he was executed anyway.
In 2016, the U.S. Supreme Court ruled judicial overrides unconstitutional. In 2017, Alabama’s governor signed legislation banning judicial overrides. Yet Alabama still has 30 people set to be executed based on this outlawed and unconstitutional practice. That’s 30 individuals whose juries, based on all the evidence, chose to spare their lives.
Alabama’s death penalty laws are indefensible, not only because they are unconstitutional but because they are based on an 1870 Jim Crow law allowing non-unanimous death verdicts. Moreover, judicial overrides affect Black defendants almost twice as frequently as white ones.
Of the 30 people on Alabama’s death row sentenced by judicial overrides, 19 — or 63.33 percent — are Black. That’s twice the rate of whites and nearly four times their presence in Alabama’s population.
Even more disturbing, Alabama’s Equal Justice Initiative found that “while judicial overrides accounted for 7 percent of death sentences in the nonelection year of 1997, in the election year of 2008, they accounted for 30 percent.”
Of the 19 Black people currently on death row in Alabama due to judicial override, all but one were sentenced by white judges. All judges were either running for reelection at the time or did run in the next election.
In Alabama, getting tough on criminals, particularly if they are Black, still seems to be a political art form.
One of the 19 Black men sentenced to die is Rocky Myers. Myers was convicted based on the testimony of a key witness who has since recanted his testimony. Based on IQ tests, Myers has intellectual disabilities. Furthermore, his jury voted 9 to 1 for life without parole. The trial judge nevertheless ordered him to be executed.
National statistics also implicate racism in prosecutorial discretion as to who is charged for capital murder.
A report by the Death Penalty Information Center (DPIC) shows that since 1976, nationwide, 1 person on death row has been exonerated for every 8.3 executed. We’ve been getting it wrong about 12 percent of the time.
Even worse, exonerations, the DPIC found, are “overwhelmingly the product of police or prosecutorial misconduct or the presentation of knowingly false testimony.” Of those exonerated for prosecutorial misconduct, 87 percent are Black.
As a former governor of Alabama, I had a chance to commute the sentence of Freddie Lee Wright. I didn’t. Now, 24 years later, evidence has dribbled out that convinces me that Wright was guilty, but not of capital murder. I believe that he was wrongfully charged, wrongfully prosecuted, and wrongfully executed on March 3, 2000.
There are other death row convictions that should haunt current Alabama leaders.
Take Toforest Johnson, for example, a Black man whose conviction was based on the testimony of a woman who was later paid $5,000 for that testimony. Ten alibi witnesses place him across town at the time of the murder. Both the prosecutor who convicted Johnson in 1998 and the current elected District Attorney have called for a new trial, but shamefully, Johnson remains on Alabama’s death row.
In 2020, the Supreme Court ruled that it takes a unanimous verdict to convict someone of a capital crime warranting death. The court highlighted the racist underpinnings of non-unanimous verdicts, a Jim Crow practice dating back to the 1870s. Whites apparently didn’t have a problem with unanimous jury verdicts until freed slaves were made citizens and could serve on juries. A vote by a single Black juror could prevent them from sentencing a Black man to death.
Even though the 2020 Supreme Court ruling didn’t explicitly extend to the sentencing phase, all states ended the practice, except for Alabama.
Alabama has 115 people, 54 of whom are Black, sentenced to death by this legal relic of Jim Crow. Regardless of one’s view on the death penalty, we should all agree that the process should be moral and constitutional. We should also agree that executions shouldn’t be based on racist relics of our shameful past, like non-unanimous juries and judicial overrides.
Tragically, that’s not the case.
Don Siegelman served as Alabama’s first progressive and last Democratic governor, from 1999 to 2003. He is an author and a lawyer focused on the criminal justice system.