Eight times since 1976 the state of Alabama has sent a person to death row and gotten it wrong. One of those exonerees, Anthony Ray Hinton, spent almost 30 years on Alabama’s death row before his volunteer lawyers were able to show that the government relied on flawed evidence – that he was innocent. Mr. Hinton’s case shows that it can take years to uncover evidence of innocence. Despite this knowledge, last week the Alabama legislature voted to “streamline” Alabama’s death penalty process. As Mr. Hinton wrote last month, had SB 187 been in place while he sat on death row, he would likely have been executed despite his innocence.

Regardless of where each of us stand on the death penalty, opposition to this legislation should be universal. In the United States, the importance of ensuring a fair and accurate death penalty process should be non-negotiable. Unfortunately, Alabama legislators disagreed.

Proponents of this legislation, including Alabama’s new Attorney General, are using one of the oldest tricks in the book to gain support . . . fear. In  a recent op ed by Attorney General Marshall, he began by retelling the gruesome facts surrounding a 37 year-old murder. In General Marshall’s death penalty narrative, the government always convicts the right person. It’s a perfect justice system (found in the fiction aisle). According to the Attorney General’s logic, if the facts are gruesome then justice must be swift, regardless of those pesky innocence issue.

In reality, SB 187 – the so-called “Fair Justice Act” – would:

  1. Undermine the ability of post-conviction counsel to fully defend their client by limiting their ability to conduct a thorough investigation, thus increasing the likelihood that Alabama would execute an innocent person (e.g. under this bill the direct and post-conviction appeals must occur at the same time, making it impossible for the post conviction counsel to properly investigate whether the direct appeal counsel provided ineffective assistance of counsel); and;
  2. Fail to ensure the appointment of qualified counsel at the post-conviction stage, thus compounding the issues surrounding ineffective assistance of counsel that already plague the trial and direct appeal stages.

While the facts surrounding a murder may be gruesome, they are reiterated to distract us – to make us forget what the legislation before us would actually do, which is to prioritize rushing to an execution over ensuring the accuracy of the conviction. The impact of SB 187 is clear – it would make it more difficult for an innocent person to prove their innocence. And, as Jennifer Thompson from Healing Justice pointed out, when an innocent person sits in prison, the actual guilty person remains free to commit additional crimes.

We’re not the only one to raise a red flag around this legislation – here’s a snippet of the widespread opposition to SB 187:

  • Linda Klein, President, American Bar Association – “The American Bar Association takes no position for or against the death penalty itself, but our members – who include prosecutors, defense lawyers, and judges – have long been committed to ensuring that capital punishment is fair, unbiased, and accurate. Our expertise provides us with a unique perspective regarding the likely pitfalls and unintended consequences of this legislation.”
  • Anthony Ray Hinton, Death Row Survivor – “I spent 30 years on Alabama’s death row for a crime I did not commit. If proposed changes to Alabama’s postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence.”
  • Jennifer Thompson, Founder, Healing Justice – “By prioritizing speed of the death penalty process over accuracy, SB 187 will not only place unnecessary pain on victims and survivors but also undermine the safety of others. Every day an innocent person sits in prison, the guilty person is free to commit additional crimes.”
  • Montgomery Advertiser Editorial Board – “Alabama legislators this past week wrongly approved a bill that shortens the appeal process for people convicted of a capital crime and facing an execution. Too much is at stake to take decisions of execution lightly. Mainly, it’s someone’s life and when the state makes the choice to kill a person, we are all responsible for that death.”
  • Ronald Sullivan Jr., Professor, Harvard Law School  – “The deceitfully named bill (it is neither fair nor just) would shorten the time for appeals and reduce already inadequate resources that death row prisoners have when appealing their convictions. Alabama has clearly put its head in the sand and is ignoring its own disgraceful experience with wrongful convictions and the death penalty, as well as current recommendations from other states.”
  • Lisa Borden, Attorney in Birmingham – “While this may sound like a good plan to those unfamiliar with the process, the proposal is neither fair nor just, and will only increase the already substantial likelihood that Alabama will execute a wrongfully convicted person.”
  • Stephen Cooper, Former Assistant Public Defender in Alabama – “Conscientious Alabamians concerned that, like Ray Hinton, freed after a hellacious 30 years on Alabama’s death row proclaiming his innocence, additional innocents might be unjustly thrust towards terrible and inhumane deaths – without an adequate chance to prove their innocence and/or that their constitutional rights were violated – you need to speak up. You need to speak up now!”

The awesome power of the government to kill in our name must be based on a fair and accurate process. SB 187 would do the opposite. We urge Governor Ivey to veto this legislation.

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