Birmingham News Reverses Its Position on the Death Penalty

Editorial series calls for end to capital punishment

The Birmingham News, a consistent supporter of capital punishment in the past, is now advocating that the state abandon the use of the death penalty. In an editorial series that was published November 6 - 11, 2005, the paper stated that there are serious flaws in the application of the death penalty in Alabama. It also said that the death penalty is inconsistent with the paper’s commitment to a culture of life.

According to the News, “[These editorials] will document over the next several days how the death penalty is applied arbitrarily in Alabama, how the system for defending those accused in capital cases is deficient and how the argument that capital punishment deters crime is open to question. These findings will be troubling on their own. When you consider
these uncertainties in the context of a culture of life . . . it becomes harder to defend a flawed system for deciding who lives and who dies.”

Alabama is a leading death penalty state. According to DPIC there have been 34 executions in Alabama since 1976, and 191 people are currently on death row. According to the News report, 75% of those sentenced to die in Alabama had killed a white person, even though the majority of the state's murder victims are black. Five people have been freed from Alabama's death row on the basis of innocence.

By examining individual cases, the News series highlights injustices in the death penalty system. Though it recommended abolishing Alabama's death penalty, the paper said that short of that, the state should enact a lengthy list of reforms to ensure that the death penalty is applied more fairly. The following are excerpts from the editorial series.

Alabama’s Error Rate in Capital Cases Far Exceeds the National Average

The News notes: “It should be no comfort to death penalty supporters that in the process leading to execution, mistakes are so common.” In particular, The News provides the following example:

  • “A massive study by Columbia University Law School professors in 2000 put the national error rate for capital cases at 68 percent while Alabama’s error rate exceeded 77 percent for capital convictions and death sentences.”

Flaws in System Put State at Risk for Executing an Innocent Person

The News asserts, “[T]hose who value life must demand at minimum a fair, impartial system designed to prevent the abhorrent possibility of the state killing an innocent person,” and provides evidence of exonerations throughout the country and in Alabama: Name of Exoneree
Year of Conviction
Year of Release
Walter McMillian
Randall Padgett
Bo Cochran
Gary Drinkard
Wesley Quick

  • “Since 1973, 121 inmates in 25 states have been released from Death Row”
  • Anthony Ray Hinton is currently on death row in Alabama. The News provides evidence of his possible innocence. To read the editorial on Anthony Ray Hinton click here.

The Death Penalty is Applied in a Haphazard Fashion

According to the News, “[W]e should be assured the ultimate punishment is inflicted fairly and accurately. That's not the case. If it were, the horror of a particular crime and the guilt of a particular defendant would determine whether a case ended with a sentence of death. Instead, the outcomes often hinge on the status of the accused, the quality of the defense, the race of the victim, even the location of the crime.” Arbitrary factors influence who is sentenced to death. The News claims “ those who get the ultimate punishment are not necessarily the worst of the worst.”

  • “The factors that determine which cases end with death are arbitrary. Socioeconomic status of defendants, quality of defense, race of victim.”

Race Could Play a Role in Who Gets the Ultimate Punishment

According to the News, race plays a part in who is sentenced to death. For instance:

  • “In 2003, for instance, blacks made up 60 percent of the homicide deaths. Of murder victims whose killers were sentenced to death over the past 30 years, more than 75 percent were white.”

Race of Homicide Victims
in Alabama 1994 - 2003

Race of Victim for
Defendants Sentenced to Death
in Alabama 1994 - 2003

Race of Victim for Defendants Executed
in Alabama Since 1976

Source: Birmingham News

Source: Birmingham News
Source: NAACP LDF Death Row USA

Discretion Leads to an Arbitrary Application of the Death Penalty

“Alabama has one of the nation's broadest capital punishment laws, allowing the death penalty for 18 varieties of murder. Despite the sizable number of murders that qualify, only a fraction end up with a death sentence.” The News emphasizes how discretion can impact the decision of who is sentenced to death. “Even biases that are buried can emerge in capital cases because humans make the call about who gets life and who gets death.” There are several ways that discretion comes into the process. For example:

Prosecutors Determines Who is Charged with Capital Murder

“Eighteen varieties of murder but not everyone who commits one of these crimes is condemned to die.” Prosecutors must first decide whether to charge a person with murder or with capital murder. Prosecutors determine whether or not a person should be prosecuted capitally in different ways.

  • “How fair can it be when a crime in one county is deemed worthy of the state’s worst punishment, while an almost identical crime in another county is not?”
  • “Jefferson County District Attorney David Barber says his philosophy is to charge any crime that meets any of the legal criteria as capital murder - and to seek the death penalty. ‘That way we won't get in a situation of picking and choosing,’ he said.”
  • “Shelby County's Robby Owens does pick and choose. He says he doesn't go after the death penalty unless the murder was calculated, there's no question of guilt and he believes the defendant isn't worth saving.”

Source: Birmingham News

Judicial Overrides
Judges with the Most Overrides

Braxton Kittrell,
Mobile - 7

Ferril McRae,
Mobile - 5

Randall Thomas,
Montgomery - 5

  • "Judges, too, play a role - more so in Alabama than in most other states. Here, judges can impose a death sentence even when a jury recommends against it.”
  • “Since 1982, 53 judges have handed down 83 death sentences against a jury's wishes--20 percent of the people on Death Row. More than 1 in 5 overrides were the work of just three judges.”

Lack of Adequate Legal Representation Brings the Reliability of the System into Question

“Alabama must ensure a decent legal defense if it is going to embrace and encourage death for those who commit the most serious crimes against society. Anything less,” the News contends, “unconscionably devalues life.” The facts demonstrating how lack of legal representation influences the reliability of death sentences are:

Alabama Has No Public Defender System

  • “One of the most dangerous flaws in Alabama's capital punishment system is the lack of a statewide public defender system. Instead, the state offers a hodgepodge, bare-bones way of providing lawyers to defend poor suspects.”

Inexperienced Attorneys Often Handle Capital Cases

  • “Court-appointed lawyers often have little experience in capital cases, and limits on pay discourage highly qualified lawyers from taking cases.”
  • “Conversely, a district attorney's office, which prosecutes individuals charged with capital crimes, may have highly experienced attorneys who deal with homicide trials regularly.”

Attorney Pay Rates Are Low

  • “The great majority of today's death row inmates were convicted before 2000. Yet until 1999, court-appointed lawyers were paid $20 an hour for out-of-court work and $40 an hour for in-court work; until 2000, they got $30 an hour out of court and $50 an hour in court. Also until 2000, the court-appointed lawyers were capped at $1,000 for out-of-court fees, meaning they were limited in the pretrial hours they could work on a case, unless they worked for free.”

Attorneys Are Not Guaranteed for Appeals

  • “In a system like Alabama's that does not pay for or guarantee a high-quality, aggressive defense at trial for each death penalty case, it's even more important that the trial get a close examination on appeal. But the death penalty appeals process is stacked heavily against somebody fighting for his life.”
  • Alabama provides no “system of assuring lawyers for defendants for the crucial second and third round of appeals where miscarriages of justice are most often uncovered.”

The Majority of Alabamians Question Fairness of Death Penalty—Majority Favor Moratorium

  • “While more than 7 in 10 favor capital punishment, about 57 percent of those surveyed say they favor a moratorium until questions over the way the death penalty is applied can be worked out.”
  • “Only 47 percent believe the death penalty is applied fairly in Alabama, according to the poll.”
  • “80 percent of those polled think the state could execute someone who is not guilty.”

How do you feel about the use of the death penalty in Alabama?

Do you believe the death penalty is applied fairly in Alabama regardless of gender, race or income?

Do you believe an innocent person may be convicted and executed?

Source: Birmingham News

Source: Birmingham News
Source: Birmingham News

The News Offers Recommendations for Improving the Reliability of the Death Penalty in Alabama

According to the News: “The ultimate punishment is inflicted, at best, haphazardly. The outcome of capital murder trials can be affected by arbitrary factors such as the status of the accused, the race of the victim and more than a little luck. One of the most crucial factors is the quality of legal representation; Alabama doesn't provide for an adequate defense, much less the vigorous defense a life-or-death case demands. That raises the specter of the worst failure the state's criminal justice system could ever experience: the execution of an innocent man or woman.” Until the state abandons its use of the death penalty, the News suggests the following reforms:

Commission a Study on Capital Punishment in Alabama

  • “The people of Alabama - in the form of their state government - should conduct a thorough review of their own.”

Impose a Moratorium on the Death Penalty

  • “The Legislature, in the session that begins in January, quickly should pass a law suspending the death penalty while a commission examines problems with Alabama's system of capital punishment.”

Stop Jury Overrides

  • “Take away the power of circuit judges to impose death sentences when a jury recommends a sentence of life in prison without parole. Alabama is one of only a handful of states that grant judges this power and the only state where it is used liberally. Political pressure can be (and has been) used to urge judges, who are elected, to resort to the override power. The state should remove that temptation.”

Establish a Way to Review the Prosecutor’s Decision to Seek Death

  • “Establish a uniform system with state oversight to guide prosecutors in deciding when to seek the death penalty. The system should include a process of review so that defendants can challenge a prosecutor's decision on the front end.”

Require Full Disclosure by Prosecutors in Capital Cases

  • “Require prosecutors in a capital case to turn over every bit of evidence - helpful or not - to the defense. They already are required to turn over helpful information; but sometimes, disputes occur over whether a particular piece of information would aid the defense.”

Establish Safeguards for Unreliable Testimony

  • “Put safeguards in place to address chronic problems that crop up in death penalty cases with regard to eyewitness testimony, the use of jailhouse snitches and police interrogation procedures.”

Decrease Capital Offenses

  • “Reduce the number of crimes that qualify for a death sentence.”

Define Mental Retardation

  • “Set up reasonable guidelines about what constitutes mental retardation in keeping with the U.S. Supreme Court decision striking down executions of the retarded.”

Pass Law to Ban Execution of Juveniles

  • “Pass laws outlawing the execution of people for crimes they committed as juveniles in keeping with another U.S. Supreme Court ruling.”

Preserve Evidence in Capital Cases

  • “Make sure evidence in capital cases is preserved to allow for DNA testing where it could determine guilt or innocence, and ease the way for the testing to take place.”

Make Reforms Retroactive

  • “Devise a system to review death penalty cases prosecuted before these reforms (while lawyer pay was deplorably low) to try to ensure no innocent person is executed.”

Examine Proportionality of Capital Prosecutions and Sentences

  • “Study the correlation between race and the death penalty, and make changes to the law or in practices to try to ensure that the ultimate punishment is about the severity of the crime, not the skin color of the defendant and victim.”

Ban the Execution of Persons with Mental Illness

  • “Protect people with serious mental illness from being executed for crimes they committed while psychotic.”

Despite Reforms, The News Says System May Not Be Fixed

  • “Taken together, these proposals are not an inexpensive proposition. The state already spends $40 million a year paying court-appointed lawyers to defend poor suspects. A statewide indigent defense system likely would cost much more. That means it's even less likely the Legislature, which every year patches together an operating budget with smoke and mirrors, will undertake these reforms.”
  • Even if all these steps were taken, they would not be enough to satisfy the News' editorial board that the death penalty is appropriate for Alabama.

Read the Full Text of the Birmingham News' Editorials