"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," the governors wrote. "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."
They cited data from the Death Penalty Information Center, which counted that for every 8.3 executions, there has been one person exonerated since 1976. It means they're putting people to death who weren't guilty about 12 percent of the time. Applying those statistics to Alabama means as many as 20 people shouldn't be there and were wrongfully 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 an 'epidemic' in the United States. Shamefully, such misconduct most frequently involves Black defendants (87 percent)," the column explained.
The governors cited one person in Alabama that has been exonerated, but they said there are more convictions that lawmakers should find concerning. They went so far as to say that those convictions should "haunt Alabama 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," they recalled. "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."
Siegelman mentioned Freddie Wright, who he could have commuted in 2000, but didn't. He said it haunts him. After 23 years, he's fairly certain that Wright was wrongfully charged, prosecuted, and convicted for a murder he likely didn't commit.
They also cited a 1976 Supreme Court ruling that opened the door for prosecutors to use grand juries to get convictions without any accountability for themselves. The joke has always been that a grand jury could indict a ham sandwich. It's not far off, as the governors cite close to a 99 percent indictment rate.
They described the "stealth setting" as a place without a judge or defense lawyers overseeing what prosecutors are doing. It gives them free rein to provide false evidence or testimony and withhold any evidence they want to get the conviction. The District Attorneys prosecutors work for are political officials, meaning their success rate becomes a campaign talking point. Convictions are seen as doing a good job.
Before the Supreme Court made that ruling, there were about 200,000 people that were incarcerated. After the 1976 ruling, it shot up to 1.6 million.
"In 2020, the Supreme Court ruled that a unanimous verdict is required to convict someone of a capital crime warranting death. The court highlighted the racist underpinnings of non-unanimous verdicts as a Jim Crow practice dating from the 1870s," the governors explained.
"Alabama had been the only state to allow a person to be sentenced to death by this legal relic and has 115 people scheduled to die based on non-unanimous jury verdicts."
Under the guise of being "tough on crime," Gov. Ron DeSantis (R-FL) recently signed a law allowing someone put to death in Florida on a jury vote of 8-4.
Alabama has banned judicial overrides, which allowed judges to bypass the jury and give whatever sentence they wanted. In the state, 7 percent of death sentences were from these kinds of judicial overrides. When the law was signed, it didn't help the 31 people on death row in the state that were already there because of the practice.
The men closed by saying that 146 people on death row in Alabama are there due to split juries or judicial overrides.
"We missed our chance to confront the death penalty and have lived to regret it, but it is not too late for today’s elected officials to do the morally right thing," they closed.
Read the full column at the Washington Post.
