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May 24, 2023

Former Alabama Govs now urge the commutation of most of Alabama's death row

Through this recent Washington Post opinion piece, headlined "We oversaw executions as governor. We regret it.", former Alabama governors Robert Bentley and Don Siegelman explain why they would now be eager to commute most of the state's death row. Here are excerpts from the start and end of the piece:

Alabama has 167 people on death row, a greater number per capita than in any other state. As far as the two of us are concerned, that is at least 146 people too many. Here’s why.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life....

As governors, we had the power to commute the sentences of all those on Alabama’s death row to life in prison. We no longer have that constitutional power, but we feel that careful consideration calls for commuting the sentences of the 146 prisoners who were sentenced by non-unanimous juries or judicial override, and that an independent review unit should be established to examine all capital murder convictions.

We missed our chance to confront the death penalty and have lived to regret it, but it is not too late for today’s elected officials to do the morally right thing.

This piece perhaps provides yet another data point in support of the so-called "Marshall hypothesis," the idea Justice Thurgood Marshall articulated in his Furman opinion that persons learning more about the administration and effects of capital punishment will come to reject it.  It also provides another data point for the reality that it seems much easier for politicians to turn against the death penalty once they are former office holders.

May 24, 2023 at 09:14 AM | Permalink



Posted by: federalist | May 24, 2023 10:43:23 AM

Weak? This isn't Chesa Boudin in SF, it's (former) statewide officials in Alabama. I would think that taking a politically unpopular stance would be an act of courage, not weakness.

I'd add Justices to Doug's formulation re late or post-career expression of regret, with Breyer and Blackmun being late and Stevens and Powell being post. (Stevens in Baze is a bit harder to parse than Blackmun, but I agree that concurrence expresses real doubts. He was more unequivocal in retirement)

Posted by: John | May 24, 2023 11:24:39 AM

Doug --

"This piece perhaps provides yet another data point in support of the so-called "Marshall hypothesis," the idea Justice Thurgood Marshall articulated in his Furman opinion that persons learning more about the administration and effects of capital punishment will come to reject it."

Both of us have looked at the DP a lot and neither of us is an abolitionist.

Neither is Justice O'Connor and neither was Justice White and neither was Justice Burger, etc. They had as much experience as Justice Marshall.

Marshall was among six SCOTUS justices to reject the DP outright. The other 110 haven't, including Justice Kagan, now that we're at it.

Posted by: Bill Otis | May 24, 2023 3:43:17 PM

I believe Justice Marshall was generally hypothesizing about the views of members of the general public and/or persons who were not all that informed about the specifics of capital administration. The line in the commentary stating "if we had known then what we know now ..." is what prompted me to think about the Marshall hypothesis.

Posted by: Doug B | May 24, 2023 4:10:19 PM

Marshall represented persons facing the death penalty, giving him a different perspective than his brethren

Posted by: John | May 24, 2023 4:17:26 PM

I’m all for the people getting an inside look at the “administration and effects” of capital punishment as long as they get an inside look at the grisly nature of a raped and murdered 12 year old girl.

Posted by: TarlsQtr | May 24, 2023 11:54:25 PM

As long as they also get an inside look at the growing number of exonerations, primarily of Black men. Until we get better at not sentencing innocent people to death, we should not be executing anyone.

Posted by: SBradley | May 25, 2023 9:31:35 AM

SBradley --

1. Name a single factually innocent person that any neutral and reasonably authoritative organization has shown was executed in this country in the last 50 years.

2. But it's true that persons guilty of murder who legally could have been given the death sentence but weren't have killed again, isn't it?

3. Not that this exoneration stuff is anything but a dodge. In fact, you don't want anyone executed no matter how utterly airtight the proof of their guilt is. Fine. Tsarnaev is all yours. You own him.

Posted by: Bill Otis | May 25, 2023 10:17:31 AM


In response to your inquiry (#1 above), with your arbitrary qualifiers attached ('in the last 50 years', 'neutral and reasonably authoritative organization'), just a small modicum of research discovers the following three cases:

1. Carlos DeLuna (accused and convicted of murder in Corpus Christi, TX.), by all reasonable standards, was proven to be factually innocent of a homicide occurring in 1983.

2. Cameron Willingham, of Corsicana, TX. (convicted for the 1991 arson/murder of his 3 young children). The State of Texas, who had hired their own forensic experts to conduct an investigation into the use of so-called "junk science" in criminal cases, found that in the Willingham case, post-execution, that the conviction was based completely upon local investigators' faulty methods, and reliance on "junk science" (inlcuding the fact that Willingham listened to 'heavy metal' rock music, which they then testified was conclusive evidence that he engaged in "satanic practices"), and that the 'science' was known to be "junk" even at the time of the trial.

3. Troy Davis of Savannah, GA. Post-execution, the Atlanta-Journal Constitution re-examined the case. Seven of the nine eyewitnesses they interviewed recanted their testimonies. Many of them told the newspaper that police pressured them to implicate Troy Davis and that it was actually Sylvester Coles who shot victim Officer Mark MacPhail. Public figures around the world, including Jimmy Carter and Pope Benedict XVI, called for a stay of execution, but Troy was executed when SCOTUS announced its decision to refuse to grant a stay.

retrieved from: https://www.nytimes.com/2019/02/02/business/bruce-reilly-murder-conviction-lawyer.html

Lastly, Bill, you seem to rely upon statistics when those numbers are in 'your favor', but choose to ignore all the statistics that go against your arguments. I assume you will contest these 3 cases as "inconclusive", or "faulty" in some respect. No shock there.

This seems to be the Bill "Heads I win, tails you lose" Otis method of debate.

To parrot 'federalist': "Weak".

Posted by: SG | May 27, 2023 9:05:04 AM

SG --

1. DeLuna -- you fail to name the neutral organization that attests to his supposed innocence, there being none.

2. Willingham -- his own wife and (post-execution) his own lawyer admitted he was guilty. Do you know him better than they did?

3. Davis -- Years-later recantations, often bought in one form or another by the defense bar, are a dime a dozen. They're just playing to their pro-murder audience. When it counted, they had a different story. And Carter and the Pope (neither being authoritative on the specific question here) called, not for ending the DP, but for temporarily staying it. Not the same thing, as you know.

Sorry, wanna try again?

And you walk past my question ("the SG method of debate") so I'll ask it again: It's true, isn't it, that persons guilty of murder who legally could have been given the death sentence but weren't have killed again? Which means that the FAILURE to impose and carry out the DP on the guilty cost the lives of the innocent, doesn't it? Do you care?

"This seems to be the Bill 'Heads I win, tails you lose' Otis method of debate."

My method of debate won me well over 100 contested felony cases in the federal courts of appeals. What's your record, sonny? And I don't mean your record scoring dime bags. I mean your record in court.

Posted by: Bill Otis | May 27, 2023 9:56:34 AM

SG previously wrote to Mr. Otis:

"I assume you will contest these 3 cases as "inconclusive", or "faulty" in some respect. No shock there."

And sure enough...and as sure as the sun rises in the east and sets in the west...

As to your question re: murderers who murder....duh. Doesn't take a genius, or even a former AUSA to figure this one out.

But if you should ask the critical question, "How could this have been prevented?" Yes, the criminal could have not murderered. Again, duh.

That IS but one answer.
Other answers:
You (collectively, those running the 'system') had your bite at the apple and failed. If the system had been effective, and the 'system' worked the way you envision, then the murderer would hvae been sentenced to death, or at minimum, LWOP.
So who shares in the responsibility besides the criminal and their dastardly, evil defense attorneys (as well as all those liberal politicians and soft-on-crime judges)?

Either the evidence was just not there to convict beyond a reasonable doubt, OR there was some type of failure or errors on the part of the police/prosecution (most typically police misconduct or prosecutorial misconduct. Rarely is it judicial misconduct or jury misconduct).

And so in the final analysis, your system failed not only the criminals, but all of society, and most importantly the subsequent victims.

Do those running this system ('tough on crime politicians', law enforcement, prosecutors, parole/probation, govt. experts, judges and justices, media surrogates, etc.) EVER publicly admit fault, or take a shred of responsibility for their role in teh subsequent murders? No way, Jose. Almost to a person, they will sit back and point their collective fingers at the criminal and defense attorney, and anyone else that may get in their way.

We'll soon read it in one of your postings, I'm sure: "It's ALL their fault, not thine. We are the heroes wearing the white hats. Don't you dare ever challenge us, fault us, or criticize us". Come on, Bill. You can admit it. We all know.

Oh, as far as my record in court as a defense attorney? I do have one case that I can tell you about. I was conscripted by the Federal court judge to act as the pro per defendant's investigator (deft. was a young alleged neo-Nazi prison gang member [and me, an old Jew. We got along famously], who was in doing double-life sentences for a murder and attempted murder. He was certainly no saint). He was accused of attempted murder in a federal prison (allegedly attacked another inmate with a shiv). After I investigated the case, I sat with him throughout the trial, coaching him along the way, acting as a surroate defense attorney, in effect. The jury was out 45 minutes. Came back with a 'not guilty'. The veteran prosecutor and FBI agent investigator were certainly 'disappointed' to say the least. They just couldn't prove their (weak) case.

So I am batting 1.000. Not bad for a HS drop out/recovered addict, eh?

Posted by: SG | May 27, 2023 7:55:21 PM

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