SOBER THOUGHTS

Even the Law Profession Recognizes
 there is a problem in Alabama’s Justice System
 

“A system that will take life must first give justice.”
Former ABA President, John J. Curtin, Jr.

Charlotte A. Clark-Frieson, Associate Editor
Washington, D.C.

The American Bar Association has recently released it’s final report entitled “Full Alabama Death Penalty Assessment Report,” stemming from a project initiated I 2001, called The Death Penalty Moratorium Implementation Project.   In this article, we will attempt to highlight some of the inadequacies identified in Alabama’s Capital Punishment system as a result of this report.

In 2001, The American Bar Association launched the moratorium implementation project as a “next step” in working to obtain a nationwide moratorium on executions. 

According to project Director, Deborah T. Fleischaker, “The initiative was created to encourage other bar associations to press for moratoriums in their jurisdictions and to encourage state government leaders to establish moratoriums and undertake detailed examinations of capital punishment laws and processes in their jurisdictions.”     

Their work has included the collection and analysis of data on domestic and international moratorium developments; working with interested ABA entities and state and local bars to address moratorium principles at those levels; and encouraging use of ABA “protocols” as means of assessing and publicizing the depth and breadth of states’ reviews of their death penalty systems.  They have also conducted analyses of governmental and judicial responses to death penalty administration issues raised in the ABA resolution; and issued reports on moratorium developments

The extensive report , spanning more than 260 pages is the result of the past five years of working on the Moratorium Implementation Project..  The report begins with an “Executive Summary,” which overviews and sets the tone for the report.  It provides the reader with an overview of the history of the project, and establishes the need for such a project  and in essence, takes a stand on the issue of the need for a Moratorium on Executions.
In it’s opening statement the report acknowledges that, “Fairness and accuracy together form the foundation of the American criminal justice system.  As our capital punishment system now stands, however, we fall short in protecting these bedrock principles.  Our system cannot claim to provide due process or protect the innocent unless it provides a fair and accurate system for every person who faces the death penalty….
 
…Over the past thirty years, the American Bar Association (ABA) has become increasingly concerned that there is a crisis in our country’s death penalty system and that capital jurisdictions too often provide neither fairness nor accuracy.”
 
            The report provides a detailed look at Alabama’s Death Penalty process from beginning to end, then it analyzes several areas thought to bear on the fairness of the system.

The areas of concern highlighted in the report include:  Collection, Preservation, and testing of DNA and other evidence, Law Enforcement Interrogations and Identifications, Crime Laboratories and Medical Examiners Offices, Prosecutorial Professionalism, Defense Services, Direct Appeal Process, State Post-Convictions Proceedings, Clemency, Capital Jury Instructions, Judicial Independence, Racial and Ethnic Minorities, Mental Retardation and Mental Illness.

What follows are what we found to be some of the more interesting and startling aspects of the ABA Report.  Included here are just some excerpts extracted directly from the report, with their commentary on certain ambiguities and/or inconsistencies revealed in Alabama’s Death Penalty System.

Collection, Preservation, and testing of DNA and other Evidence:   One of the most startling revelations of the ABA report relates to the handling of DNA evidence.  Although the intricacies are far more than can be discussed in this one article, perhaps the most interesting was that in NO case was Alabama ever fully in compliance with recommended policies, practices and procedures when it came to collecting, preserving and testing DNA or other evidence used in sentencing an accused to death.

Law Enforcement Interrogations and Identifications:   “Eyewitness misidentification and false confessions are two of the leading causes of wrongful convictions.  In order to reduce the number of convictions of innocent persons and ensure the integrity of the criminal justice process, the rate of eyewitness misidentifications and of false confessions must be reduced.”   In this chapter of the report, Alabama’s laws, procedures, and practices related to law enforcement identifications and interrogations were reviewed and evaluated as to whether they comply with the ABA’s policies on law enforcement identifications and interrogations.  Alabama was commended on several measures related to law enforcement including:
 
(1) Law enforcement officers in Alabama are required to complete a basic training course that includes instruction on interviewing and questioning techniques;

(2) Courts have the discretion to admit expert testimony regarding the accuracy of eyewitness identifications; and

(3) Alabama courts allow a jury instruction that provides jurors with information about the shortcomings and trouble spots of the eyewitness identification process.

However, despite these commendations, it was also pointed out that the State of Alabama does not require law enforcement agencies to adopt procedures on identifications and interrogations nor does it appear than any Alabama law enforcement agencies videotape or audiotape the entirety of custodial interrogations.

In order to ensure that all law enforcement agencies conduct lineups and photospreads in a manner that maximizes their likely accuracy, the ABA recommends that Alabama  require all law enforcement agencies to adopt procedures on lineups and photospreads that are consistent with the ABA’s recommendations.  In addition, the State should mandate that law enforcement agencies record the entirety of custodial interrogations.

Crime Laboratories and Medical Examiners Offices:
A third area studied included Alabama’s laws, procedures, and practices on crime laboratories and medical examiner offices.   Based on information contained in this report, our nation’s courts are relying on forensic evidence and the questionable validity and reliability of tests performed at unaccredited crime laboratories.  So, the importance is clear, for crime labs to be accredited and medical examiners to be certified, and for the laboratories to be adequately funded.

It was interesting to note that Alabama does not require crime labs or medical examiner offices to be accredited.  However, nine of the ten crime laboratories in the Department of Forensic Sciences (Department) are accredited and are required by the accrediting body to adopt written standards and procedures on handling, preserving, and testing forensic evidence.  Neither the accrediting body nor Alabama statutory law, however, require Department crime laboratories to publish these standards and procedures, nor must they be made public before becoming effective. 

Therefore, nobody outside the department truly knows the standards and procedures.

The State of Alabama does require the Department’s Chief Medical Examiner to be a pathologist certified in forensic pathology and other Department medical examiners to be forensic pathologists who graduated from accredited medical schools and completed up to five years of additional training in pathology and one year in forensic pathology, BUT The Office of the Chief Medical Examiner does not currently employ any standard operating procedures to maintain reliability and consistency in its work among its four offices.  Additionally, the Office of the Chief Medical Examiner does not provide standardized training for new and existing state medical examiners to ensure the validity and reliability of medical examiners’ death investigations.   
 
This becomes problematic when one looks at the fact the evidence that comes out of criminal laboratories, if heavily relied upon to sentence an accused to death.

Prosecutorial Professionalism:   According to the ABA report, “The prosecutor plays a critical role in the criminal justice system.  The character, quality, and efficiency of the whole system is shaped in great measure by the manner in which the prosecutor exercises his/her broad discretionary powers, especially in capital cases, where prosecutors have enormous discretion deciding whether or not to seek the death penalty.”  In this Chapter, we examined Alabama’s laws, procedures, and practices relevant to prosecutorial professionalism and assessed whether they comply with the ABA’s policies on prosecutorial professionalism.   While the State of Alabama was praised for having taken certain  measures to promote the fair, efficient, and effective enforcement of criminal law,  the ABA review showed that the State was never totally in compliance with recommended policies, practices and procedures related to the conduct of District Attorneys.  

Defense Services:  “The State of Alabama’s indigent defense system is a “very fragmented, mixed, and uneven system that lacks level oversight and standards … and does not provide uniform, quality representation to the majority of indigent defendants in the state.”  The State’s failure to adopt a statewide public defender office, a series of local public defenders, or to implement close oversight of indigent legal services at the circuit level has resulted in the State being incapable of delivering quality counsel in all capital cases.”

Direct Appeal Process:  In this chapter of the report, Alabama’s  appeal process was studied in terms of how closely the State complied with the ABA’s policies.   This was an important area to look at because one of the purposes of the appeal review is to make sure that death sentences are not imposed arbitrarily, or based on improper biases, such as sex, race, or religion, etc.  To be meaningful, the review of the appeal process would allow one to compare the process in which an imposed sentence of death is compared with sentences imposed on similarly situated defendants to ensure that the sentences are not unevenly applied.   When it came to the appeal process, in no instance was Alabama in compliance  with recommended practices, policies and procedures.   “The Alabama Code requires that the Alabama Court of Criminal Appeals determine whether the defendant’s sentence of death is excessive or disproportionate by comparing the “penalty imposed in similar cases considering both the crime and the defendant.” In practice, however, the Alabama Court of Criminal Appeals has not followed this statutory requirement in several respects.  First, it has not considered cases where death was not imposed.  Second, it has often issued decisions with cursory and conclusive claims of proportionality, without reference to any other cases.  And finally, it has repeatedly failed to account for the defendants, focusing exclusively on general attributes of the crimes alone.” 

State Post-Convictions Proceedings:   According to the ABA report, many Capital defendants receive inadequate counsel at trial and on appeal.  Therefore, Alabama post-conviction proceedings often provide the first real opportunity to establish meritorious constitutional claims.    In the majority of instances, the state did not maintain adequate information to conduct a thorough study of this area.  Despite insufficient data, it was determined that Alabama has laws that 

Clemency:  “The Alabama Constitution gives the Governor the exclusive authority to grant reprieves and commutations to people under sentence of death.  The process an inmate follows in applying for clemency and the process the Governor follows in considering a clemency application is largely undefined and each Governor may conduct the process and s/he wishes.  A hearing is not guaranteed and the Governor is not required to consider any specific facts, evidence, or circumstances, or perform any specific procedures when making his/her decision regarding a clemency petition.

Given the ambiguities and lack of structure surrounding Alabama’s clemency process, the State of Alabama should adopt more explicit factors to guide the consideration of clemency petitions and should open the hearing and decision making process to ensure transparency.”

Capital Jury Instructions:  Numerous problems were found in the area of Jury Instruction; some of these included: 

“…Jurors in Alabama appear to be having difficulty understanding their roles and responsibilities, as described by the judge in his/her charge to the jury….”  

“…Alabama capital jurors not only are confused about the scope of mitigation evidence that they may consider, but also about the applicable burden of proof and the unanimity of finding required for mitigating factors”

 “…Capital jurors in Alabama also have had difficulty understanding the requirements associated with finding the existence of statutory aggravating factors….”

“A full 40% of capital jurors interviewed in Alabama do not understand that they must find that one or more statutory aggravating circumstances exist beyond a reasonable doubt.  In addition, capital jurors fail to understand the effect of finding that the defendant’s conduct was “heinous, vile or depraved” or that the defendant would be dangerous in the future.  Although a sentence of death is not required upon a finding of one or more aggravating circumstances, 56.3% of interviewed Alabama capital jurors believed that they were required to sentence the defendant to death if they found the defendant’s conduct to be “heinous, vile, or depraved” beyond a reasonable doubt.  Similarly, 52.1% of interviewed Alabama capital jurors believed that if they found the defendant to be a future danger to society, they were required by law to sentence him/her to death, despite the fact that future dangerousness is not a statutory aggravating circumstance and that non-statutory aggravating circumstances are not allowed.”
 
Judicial Independence:  The area of Judicial Independence is related to the “politics” that often plays into the judicial process.   “With increasing frequency, judicial elections, appointments, and confirmations are being influenced by consideration of judicial nominees’ or candidates’ purported views of the death penalty or of judges’ decisions in capital cases.  In addition, judge’s decisions in individual cases sometimes are or appear to be improperly influenced by electoral pressures.  This erosion of judicial independence increases the possibility that judges will be selected, elevated, and retained in office by a process that ignores the larger interests of justice and fairness, and instead focuses narrowly on the issue of capital punishment, undermining society’s confidence that individuals in court are guaranteed a fair hearing.” 

Racial and Ethnic Minorities:  “Whatever the cause, Alabama’s death penalty system reflects serious racial disparities. Specifically, twenty-eight out of the thirty-four people—over 82%—who have been executed in Alabama since 1976 were convicted of killing white people, despite the fact that over sixty-five percent of all murders each year in Alabama involve black victims.   Eighty percent of Alabama’s current death row prisoners were convicted of murdering white people.  Thus, it appears that those convicted of killing white victims are far more likely to receive a death sentence than those convicted of killing non-white victims.
Although the State of Alabama agreed to examine the impact of racial discrimination in its criminal justice system, specifically in sentencing, there is no indication that it has done so, nor has it taken steps to develop new strategies to eliminate the role of race in capital sentencing.  Furthermore, the State of Alabama does not currently collect and maintain the data necessary to fully evaluate the impact of race in capital sentencing.”

Mental Retardation and Mental Illness:   “In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that it is unconstitutional to execute offenders with mental retardation.  This holding, however, does not guarantee that individuals with mental retardation will not be executed, as each state has the authority to make its own rules for determining whether a capital defendant is mentally retarded.”  

In the State Of Alabama, there are three factors that bear on this issue. 

(1)  Alabama’s criminal system is uncertain as to whether an IQ score in the low or mid-70s disqualifies a defendant or death row inmate from being found to have mental retardation. Thus, in deciding this issue, the Alabama Court of Criminal Appeals has been inconsistent in its application of the definition of mental retardation than the Alabama Supreme Court.

(2)  Alabama has no policies in place to make sure that persons who may have mental retardation are represented by attorneys who understand and appreciate their client’s mental limitations.  Instead, capital defendants who may be mentally retarded are assigned (or not assigned) counsel under the same rules and fee structure as every other capital defendant.

(3)  Alabama has no laws that set forth the procedures to determine if a person is mentally retarded in terms of criminal law.  There is no procedure that determines at what point in trial this will be determined, or how it will be determined.
Although the report does not specifically say so, after reading this extensive and exhaustive report, one could reasonably conclude that The State Of Alabama is extremely weak in it’s application of policies and procedures that safeguard the fairness of its judiciary.  

“Despite the best efforts of a multitude of principled and thoughtful actors who play roles in the criminal justice system in the State of Alabama, our research establishes that at this point in time, the State cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed.  Because of that, the members of the Alabama Death Penalty Assessment Team, except Arthur Green who dissents, join with over 450 other organizations, religious institutions, newspapers, and city/town/county councils and call on the State of Alabama to impose a temporary moratorium on executions until such time as the State is able to appropriately address the problem areas identified throughout this Report, and in particular the Executive Summary.”