Former Alabama Governors: We Regret Overseeing Executions

Alabama has 167 people on death row, a greater number per capita than in any other state. As far as the two of us are concerned, that is at least 146 people too many. Here’s why.

As former Alabama governors, we have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life.

According to the Death Penalty Information Center, since 1976, nationwide, 1 person on death row has been exonerated for every 8.3 executions. That means we have been getting it wrong about 12 percent of the time. If we apply those statistics to the 167 people on Alabama’s death row, it means that as many as 20 could have been wrongfully charged and convicted.

The center has found that wrongful convictions are “overwhelmingly the product of police or prosecutorial misconduct or the presentation of knowingly false testimony.” Judge Alex Kozinski, former chief judge of the U.S. Court of Appeals for the 9th Circuit, has said the withholding of exculpatory evidence by prosecutors is “epidemic” in the United States. Shamefully, such misconduct most frequently involves Black defendants (87 percent).

Alabama has not been spared miscarriages of justice. The first known exoneration from the state’s death row was of Walter McMillian, whose case was highlighted by Equal Justice Initiative founder Bryan Stevenson in his book “Just Mercy.” But there are other death row convictions that should haunt Alabama’s leaders.

In 1998, a non-unanimous jury recommended death for Toforest Johnson for the killing of an off-duty sheriff’s deputy based on the testimony of someone who, unknown to the defense, was later paid a $5,000 reward. The case of Rocky Myers, convicted of murdering his neighbor, is even more disturbing. Myers was never connected to the murder scene, and even though the jury recommended life without parole, the judge overrode the recommendation and ordered his execution.

One of us, Don Siegelman, is personally haunted by the case of Freddie Wright, whose execution he could have commuted, but did not, in 2000. Twenty-three years later, Siegelman believes Wright was wrongfully charged, prosecuted and convicted for a murder he most likely did not commit.

Since 1976, when the Supreme Court granted prosecutors immunity from civil liability, it has been common for prosecutors to get close to 99 percent of the indictments they seek from grand juries. One reason for this is that grand juries are secret proceedings, with no lawyers present and no judge to oversee what prosecutors are doing. In this stealth setting, prosecutors have free rein to present false testimony or false evidence, or to withhold exculpatory evidence to get the outcome they want.

Before 1976, the U.S. incarceration figure hovered around 200,000 people. After 1976, the number skyrocketed to more than 1.6 million. With the legal cover of the 1976 decision, President Barack Obama’s solicitor general argued to the Supreme Court in January 2010 that “U.S. citizens do not have a constitutional right not to be framed.” Ending unjust convictions will involve rethinking prosecutorial immunity.