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Former Alabama Governor Don Siegelman speaks out against the state's death penalty practices
By: Lauren Faraino

On Friday, January 19, former Alabama Governor Don Siegelman spoke to the Alabama Criminal Defense Lawyers Association, arguing that “Alabama’s death penalty laws and how they are applied...are racially biased.”

“Alabama’s death penalty laws are indefensible. They are unconstitutional and racially biased.” - Don Siegelman

Siegelman cited a study by the Death Penalty Information Center, which shows that since 1976, nationwide, one person on death row has been exonerated for every 8.3 executed. “That means we’ve been getting it wrong about 12% of the time!," Siegelman exclaimed.

“And the facts get worse,” the former Governor lamented. "They found that wrongful convictions are ‘overwhelmingly the product of police or prosecutorial misconduct or the presentation of false testimony.’[1] “And of those exonerated for prosecutorial misconduct 87% are Black! Our system of justice, our laws, should not be malleable to produce a result desired by prosecutors.”

Siegelman told the lawyers, “Alabama has 165 people on death row. Arguably, 146 shouldn’t be there.” Alabama has 115 pople on death row sentenced by non-unanimous juries. The U.S. Supreme Court determined in 2020 that non-unanimous jury verdicts originated during the Jim Crow era, in 1870. Seigelman went on to explain that "after 2020 all states except Alabama abandoned this racist practice. Now, Alabama has 115 people, 54 of whom are Black, sentenced to death by this relic of Jim Crow.”

One of those 115 is Toforest Johnson, also Black, was not near the scene of the murder, based on the testimony of someone who, unknown to the defense, was later paid a $5,000 for her testimony. Siegelman told his audience that, “Another Black man, Rocky Myers, faces execution though he has intellectual disabilities and his jury voted 9 to 1 for life without parole. The judge ordered Rocky to be executed anyway.”

Siegelman then cited a study by the Equal Justice Initiative which raised a further moral concern, finding that "judicial overrides accounted for 7% of death sentences in a nonelection year but rose to 30% when Alabama judges ran for election.” “Now what does that tell you?” Siegelman asked.

In 2016, the U.S. Supreme Court in Hurst v. Florida, 136 S.Ct. 616 (2016), ruled judicial overrides unconstitutional. In 2017, Governor Kay Ivey signed legislation banning judicial overrides. Siegelman admonished the State's leadership, noting that "Alabama still has 31 people, sentenced by judicial overrides, set to be executed." “Of the 31," Siegelman pointed out, “61% are Black. The law, as applied, was racially biased. We should all agree that our death penalty laws should be legally and morally defensible. In Alabama, they are not!"

“Regardless of one’s view on the death penalty, the process should be moral, constitutional, and not based on laws birthed in racism.”

Siegelman later pointed to another egregious example of judicial overrides. Kenneth Eugene Smith is set to be executed January 25th, by a method that’s never been tried anywhere in the world. The protocols for the execution remain secret.“In just 5 days, unless Governor Ivey uses her power to stop it, Kenneth Eugene Smith will become the first human executed by Nitrogen gas.”

“So here we are in Alabama about to execute Kenneth Eugene Smith, who was sentenced to death not by a jury – as required by the U.S. Constitution – but by a judge, a practice banned in Alabama.“His jury voted 11 to 1 for life, but the trial judge, ordered him to be executed,” Siegelman add.

Siegelman called on Alabama’s current Governor, a Republican, and the Alabama Legislature “address these moral and legal issues.”

[1] Death Penalty Information Centre, ‘DPIC Special Report: The Innocence Epidemic’ (February 18, 2021) page 3

Incarcerated teachers and servant lawyers: building a sustainable radical movement

By: Swift Justice and Lauren Faraino

Swift’s Version:

I don’t remember at what point I realized that, in order to make a real difference interrupting the past and current mindset that encompasses the judicial and penal system issues in America and especially Alabama, I was going to have to build a team of like minded activists. When I use the word “activist,” I mean active and radical change-makers.

In creating that team, I knew there was no way I could avoid bringing in the very people I had learned to despise the most: lawyers. So I went on the search for attorneys that believed in what they swore to do – not individuals that want nothing more than to contribute to the ongoing continuation of injustices. I went on a search for attorneys that were willing to put aside the conventional and traditional representation of clients – RADICAL representation, RADICAL attorneys ONLY! For years I was very unsuccessful in locating one.

Then accidentally, I ran across Lauren Faraino. I’ll never forget the first (and may I add very blunt) conditions I gave to her in joining this team. I said, “This is a dictatorship, not a democracy. You will either be extreme and radical and fight like your life depends on it, or you can go now. Those on the inside want to fight this with our ideas, our strategies, not continue to do the same thing over and over expecting different results.“

Two years and many fights later, she and I are a hell of a team. She has now created waves that have the potential of creating the storm of all storms.

Lauren’s Version:

One of the first things Swift Justice said to me was, “I hate lawyers.” I responded, “me too.” Swift made it clear that dozens of attorneys he had encountered over the years had made big promises, and failed to deliver. Even more problematic, these attorneys saw themselves as the bosses and belittled the input of the incarcerated people they were representing. Swift told me that if I wanted to really know the world of incarceration, and if I really wanted to make actual changes that matter, I would allow the people inside to lead, and I would execute their vision. I quickly and eagerly expressed my desire to be a part of his team, and to be a “movement lawyer.”

Little did I know back then how much Swift and I would clash, with my legal education clouding my ability to trust his strategic leadership. I didn’t realize how wedded I had become to lawyering the way the elite universities taught us to. Over time, and through many lengthy disagreements and conversations, I began to unlearn bad habits of the legal profession. I began to see my role as carrying out the ideas of those most impacted by bad law – the people trapped in prisons.

I am, proudly and humbly, a lawyer for the confined citizens of Alabama. It is their vision, their struggle, that I must honor through my work. Swift Justice has been patient enough to shape me into a lawyer that truly advocates for, counsels and defends those on the inside. After working with and for Swift, I understand that liberation will only be achieved when incarcerated people are given the tools they need to own their future.

W

VIGIL FOR THE VICTIMS OF THE ALABAMA DEPARTMENT OF CORRECTIONS

Alabama State Capitol Steps, Montgomery, Tuesday, March 7, 4pm - 7pm

This Tuesday, to coincide with Governor Ivey’s “State of the State” address, a diverse group of people will gather at the Capitol to remember the nearly 300 people who died in Alabama’s prisons this past year and the thousands more who have been victimized by cruel and unconstitutional conditions.

Following the vigil, the group will assemble at the historic Dexter Ave. King Memorial Baptist Church, with remembrances by notable speakers and music by well-known recording artists Lonnie Holley (incarcerated as a child at Mt. Meigs) and Lee Bains III.

When elected, the Governor acknowledged the dire state of Alabama prisons, vowing to ensure “constitutional conditions for all prisoners.” However, on her watch, according to the U.S. Department of Justice, conditions have dramatically declined with every measurement revealing a prison system in freefall. ADOC’s chaotic approach continues to result in violence and death. Alabama’s prisons now lead the nation in:

● Murder: the highest rate in the nation (8x the national average)

● Suicide: the highest rate in the nation (most in solitary confinement)

● Assaults by officers: a “pervasive pattern [of] excessive force... use of batons, chemical spray,

physical altercations, and kicking” often resulting in death.

● Drug trafficking by prison staff: vast majority of incarcerated men are addicted to deadly drugs – often brought in by prison staff.

● Rape “at all hours of the day and night...occurring in the dormitories, cells, recreation areas, the infirmary, bathrooms, and showers.”

While the DOJ specifically pointed out in it’s findings letters4 that new prisons would not solve the systemic corruption and mismanagement leading to our current problems, Governor Ivey announced that she would commit the state to a plan to spend over $1 billion of taxpayer dollars and Covid relief funds on a massive prison construction project (her so-called “Alabama solution”). Even this misguided plan has been marked by endless delays and mismanagement.

This legislative session, politicians have introduced laws that will increase already-harsh sentences, and the Governor recently issued an executive order punishing incarcerated people if they refuse to work without pay. Compounding the problem, the Parole Board is effectively inoperative, with more than 90% of eligible people denied parole. In a cruel irony, nearly twice as many Alabamians have died in custody this year than have been granted parole, sending a message of hopelessness to our large incarcerated population.

The March 7 Vigil by concerned citizens is designed to call attention to the shocking crisis being perpetrated with our taxes and in our names. Together we will honor the lives of those who have been victims of the state’s cruelty and send a message to leaders that these Alabamaians matter and a prison sentence should not be a death sentence.

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Alabama continues its secrecy around botched execution of Joe Nathan James Jr.

October 28, 2022

On July 28th Alabama executed Joe Nathan James Jr. Mr. James’s execution was torturous and veiled in secrecy. The State and ADOC refuse to investigate the circumstances around James’s death. On July 29th, Mr. Jordan Turner contacted Governor Kay Ivey’s office and made an open records request around Mr. James’s execution. The State is expected to reply to these sorts of requests in ten days. After seventy-six days without a reply, on October 12th, Mr. Turner formally requested that Montgomery County District Attorney Daryl Bailey take action to ensure that the State fulfilled its obligation to reply to the open records request. Twelve days later, on October 24th, the Governor’s office provided a response. In addition to its tardiness, the State’s response was wholly inadequate. First, the State included its previously released ‘Media Advisory’ around James’s execution. The advisory provides only the most general facts of the execution. Further, all of the information provided in the advisory had already been released through the media. The State also included a screenshot from a Yahoo News article concerning the execution. This inclusion is puzzling. The article was not authored by the state and is widely available to the public. The article provided the same general details stated in the ‘Media Advisory’. Next, the State enclosed a letter sent to Governor Ivey from Representative Juadalynn Givan prior to Mr. James’s execution. Representative Givan wrote the letter on behalf of the family of Mr. James’s victim. She stressed their request that Mr. James not be executed. The inclusion of this document is also peculiar. It is not authored by the state and provides no information surrounding the circumstances of Mr. James’s execution. Finally, the State attached a copy of ADOC’s administrative regulation #303. The twenty-four-page document concerns inmate visitation policy and contains the forms required to schedule various types of prison visits. This is, perhaps, the most shocking element of the State’s reply. ADOC regulation #303 is completely irrelevant to the execution of Joe Nathan James Jr. Given that it accounts for twenty four of the twenty-nine pages of the State’s reply, it seems as if it was included solely to add volume. An open records request serves to promote transparency. The State’s response to Mr. Turner’s request fails to do so. Joe Nathan James’s execution took three hours to complete, making it the longest documented execution by lethal injection in American history. Mr. James’s body was covered in puncture wounds and unexplained deep incisions. Despite his plans to pray and ask for forgiveness, Mr. James was unconscious at the time of his death and unable to do so. These circumstances require an explanation from the State. Mr. Turner sought this explanation through his request. The State’s reply did not shed any light on these circumstances. In fact, it seemed to be purposely evasive.

Attached below is a copy of the State's reply to Mr. Turner's open records request and his correspondence with District Attorney Daryl Bailey.

Two Alabama-Specific Laws Account for 145 out of 166 on Alabama’s Death Row

June 24, 2022

87% of individuals on Death Row in Alabama were sentenced by a non-unanimous jury verdict or judicial override–two practices unique to Alabama alone. Non-Unanimous Jury Sentencing Alabama is the only state in which a non-unanimous jury can sentence someone to death. Nearly 70% of those on Alabama’s death row - 114 out of 166 - would not have been sentenced to death in any other state, all of which require a unanimous vote for death. Many Southern states began to allow non-unanimous jury verdicts after a 1879 Supreme Court decision that held that states could not bar Black people from serving on juries. In 2020, the Supreme Court found that non-unanimous jury verdicts at the state level violated the Sixth Amendment; the requirement for a unanimous jury to convict was found to be implicit within the Sixth Amendment right to a jury trial. Justice Brett Kavanaugh acknowledged the racist history of non-unanimous jury sentencing and stated, “Why stick by an erroneous precedent that is egregiously wrong as a matter of constitutional law, that allows convictions of some who would not be convicted under the proper constitutional rule, and that tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects?” This 2020 decision did not, however, extend to the sentencing phase of a trial, where a jury decides which punishment to impose after they have found a defendant guilty. Alabama is the last state to hold onto the outmoded and racist practice of allowing a non-unanimous jury to sentence a person to death. Judicial Override Alabama and Florida are the only states where individuals have been placed on death row by a judge after a jury determined that life without parole was a more appropriate sentence. Both states have abolished the practice of judicial override, but neither applied the change in law retroactively. In Florida, judicial override was abolished in 2016. At that time, no judge had imposed a death sentence since 1999, and only 6 people currently on Florida’s Death Row (less than 2%) were sentenced through judicial override. In 2017, Alabama became the last state to outlaw judicial override. Up until the date of its abolition, many judges throughout Alabama exercised their judicial power to overturn a jury verdict and impose death in capital murder cases. Thirty-one people (nearly 19%) are on death row in Alabama due to judicial override, even though the state has itself admitted the practice was immoral. Senator Dick Drewbacker (R-Montgomery) sponsored the bill to abolish judicial override. Senator Cam Ward (R-Alabaster) stated, “At the end of the day, it is morally wrong for us to allow this to continue in our State. We have a jury system and a jury process for a reason.” The use of judicial override increased significantly in years that judges faced re-election. An EJI report reveals that in 1997, a non-election year in Alabama, only 7% of new death sentences were due to judicial override. On the contrary, in 2008, an election year, the figure rose to 30%. Sources: Judicial Override: 1. Chip Brownlee, Bill to End Judicial Override in Alabama Clears Senate, ALABAMA POLITICAL REPORTER, February 27, 2017, AT 11:56 AM, https://www.alreporter.com/2017/02/24/bill-end-judicial-override-alabama-clears-senate/ 2. Equal Justice Initiative, “The Death Penalty in Alabama: Judge Override” (2011). https://eji.org/reports/judge-override/#:~:text=Nearly%2020%25%20of%20the%20people,override%20on%20April%2011%2C%202017. 3. Michael Radelet and G. Ben Cohen, The Decline of the Judicial Override, ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE, October 2019, https://files.deathpenaltyinfo.org/documents/The-Decline-of-the-Judicial-Override.pdf 4. AL SB16 2017 https://legiscan.com/AL/bill/SB16/2017

Reading list

Exclusion and Embrace, Miroslav Volf (1996)
Political Agape: Christian Love and Liberal Democracy, Timothy P. Jackson (2015)
Ethical Loneliness: The Injustice of Not Being Heard, Jill Stauffer (2015)
This Is Water: Some Thoughts, Delivered on a Significant Occasion, David Foster Wallace (2009)
Vernon Can Read!: A Memoir, Vernon Jordan (2001)
Injustice: Life and Death in the Courtrooms of America, Clive Stafford Smith (2012)
The Purpose Driven Life: What on Earth Am I Here For?, Rick Warren (2002)
Love Your Enemies: How Decent People Can Save America from the Culture of Contempt, Arthur C. Brooks (2019)