We have long been assured that state governments treat the death penalty with the utmost reverence and solemnity. There are lots of checks and balances to prevent the execution of innocent people. Prosecutors are extra careful to dot every “i” and cross every “t.” Judges provide extra scrutiny. Appeals courts carefully review jury decisions. Defendants are given more than adequate representation. Executions follow strict protocols. And in the end, we’re told, only the “worst of the worst” are subject to the ultimate penalty.
We now know, of course, that this is far from the truth. Those checks and balances have utterly failed at keeping frauds and charlatans from using fake science to send defendants to their deaths. In countless cases, prosecutors have been caught withholding exculpatory evidence, engaging in blatant racial discrimination during jury selection and making illegal and inflammatory statements to juries. We’ve also seen prosecutors, even entire district attorneys’ offices, treat executions as a badge of honor.
Some police officials have perfected the art of ginning up fake testimony from dubious jailhouse informants to seal a conviction. Appeals courts are generally uninterested in revisiting the facts of capital convictions, only in seeing to it that trials followed the proper procedures. Criminal defense attorneys have been caught sleeping and drinking through capital cases. Those who are competent tend to be overworked. As we’ve seen in recent years, most recently in Oklahoma, despite the emphasis on largely symbolic rituals such as last meals and written protocols, the rush to execute often takes priority. Several recent executions have been badly botched, and in some cases were incredibly cruel. Some states are now buying the drugs they use to kill off the black market. Others are passing laws to make the entire process as opaque as possible. This is the most profound power we grant to government, and lawmakers are making it increasingly secretive.
Finally, far from the assertion that only the most violent, dangerous and clearly culpable defendants are sent to die, which people convicted of murder get executed is largely a lottery. We’re executing the mentally ill, the mentally disabled and the elderly. In an Oklahoma case recently heard by the Supreme Court, a man who was alleged to have ordered a killing (and who maintains his innocence) was sentenced to death based almost entirely on the testimony of the man who admitted to committing that murder. The actual killer avoided death, largely because of his testimony. Missouri recently executed a man who was missing part of his brain. We’ve executed accomplices, in some cases while letting the actual killers live. And we’ve executed plenty of people for whom there was compelling evidence of innocence. In fact, you could argue that the system is more likely to execute the less culpable. The more culpable party is generally more likely to offer to testify against any accomplices. The guilty can sometimes spare themselves death by admitting guilt and taking a plea bargain. Meanwhile, the system tends to be particularly harsh on people who maintain their innocence.
I bring all of this up because a recent story out of Alabama may be the best example yet of just how un-seriously death penalty states treat capital cases. From the Marshall Project:
The U.S. Supreme Court is now considering whether to take up the case of [Doyle Lee] Hamm, an intellectually disabled and possibly brain-damaged man who was sentenced to death in 1987 for killing a motel clerk during a robbery. Doyle went to his fate after a rushed trial marked by an anemic defense and constitutionally murky decisions by prosecutors and the judge. That’s sadly common in Alabama.
What happened next also is common in Alabama—but pretty much nowhere else.
Twelve years after Hamm was sentenced to death, an Alabama judge rejected an attempt by his new attorneys to win another sentencing hearing for their client. The lawyers wanted to present facts from Hamm’s grim life that might have convinced a jury not to impose death—so-called mitigation evidence—that Hamm’s first lawyer failed to unearth during his trial. That, too, happens all the time.
But in turning down the appeal, the judge exposed the entire process as a sham. He signed an 89-page order written entirely by the Alabama Attorney General’s Office—and did it within one business day of receiving it. He didn’t even take the time to cross off the word “Proposed” in the title, “Proposed Memorandum Opinion.” Hamm’s attorneys allege the judge never read the opinion before signing it, and no state attorney has ever refuted that.
This was to determine Hamm’s sentencing, not his guilt or innocence. (Hamm’s guilt isn’t really disputed, though he, too, may be mentally ill.) Still. The judge couldn’t even write his own opinion? He couldn’t even read the state’s brief before adopting it as his order?
This is just one instance, you might say. It was a lazy judge. That isn’t an indictment of the death penalty in general. But as Andrew Cohen explains, what happened in the Hamm case is actually common in Alabama.
In support of Hamm, a group of former Alabama judges and past state bar presidents told the justices in Washington that it is routine practice in Alabama for prosecutors to write proposed orders for judges in capital cases. In 2003, a study found that in 17 of 20 recent capital cases the judge had denied relief in orders written entirely by prosecutors.
The Supreme Court is currently considering whether to take up the case. That it’s even up for debate speaks volumes about all of that reverence and solemnity with which the criminal-justice system allegedly treats the death penalty.