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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Alabama court rules death penalty law constitutional in 3 cases SCOTUS sent back for review

Alabama
The Alabama Court of Criminal Appeals on Friday ruled the death sentences of 3 state inmates are constitutional and don't conflict with a U.S. Supreme Court ruling that struck down Florida's similar death penalty sentencing scheme.

The U.S. Supreme Court had vacated the sentences of Alabama death row inmates Ronnie Kirksey, Corey Wimbley, and Ryan Gerald Russell, this year and sent them back to the state appeals court to review in light of its Florida ruling.

Alabama's death sentencing law has been compared to Florida's because both allowed judges to override jury recommendations for life and instead impose death.

On Friday the Alabama Court of Criminal Appeals said it wasn't the same and affirmed the convictions of Kirksey, Wimbley and Russell. The court said Alabama's law is constitutional and does not "run afoul" of the U.S. Supreme Court's ruling in Hurst v. Florida in January.

Prosecutors and Alabama Attorney General Luther Strange have repeatedly argued that Alabama's law was upheld by the U.S. Supreme Court in 1995 and is not the same as the portion of the Florida law struck down in Hurst.

Florida's law had required the judge -- not the jury -- to find the existence of an aggravating circumstance in order for the defendant to be subject to the death penalty.

Alabama's law already requires the jury to find an aggravating factor, such as murder during the commission of a robbery, kidnapping or rape, prosecutors argue. Therefore, at the time of conviction, the jury has already agreed upon at least one aggravating factor before the sentencing phase began.

In Alabama, after the jury unanimously convicts a defendant with at least one aggravating factor at the trial jurors in a separate hearing then weigh any other aggravating factors and mitigating circumstances and recommend life without parole or death. Jurors must vote 10-2, 11-1 or 12-0 to recommend death. The judge then imposes the final sentence and at that time can override the jury's life or death recommendation. Most of the overrides in Alabama have resulted in the death penalty.

In its order in Wimbley's case, the Alabama Court of Criminal Appeals found that the jury - not a judge - had determined Wimbley was eligible for the death penalty because it had unanimously convicted him of murder during the course of a robbery and arson. Robbery and arson are both aggravating factors.

"Consequently, the jury's guilt-phase verdict satisfied Wimbley's Sixth Amendment right to a jury finding as to the existence of an aggravating circumstance," the appeals court stated. "That, as the Alabama Supreme Court explained, is all that "Ring (a previous SCOTUS ruling) and Hurst require ... nothing more and nothing less."

Florida's legislature enacted a new law that gives the jury, not the judge, the power to impose a death sentence. In Delaware, the only other state that allowed judicial overrides, that state's Supreme Court struck down its override law in August. That leaves Alabama as the only state that allows judicial override.

Alabama is now the only state to allow judges to override jury recommendations for life without parole and for those recommendations to be non-unanimous.

Jefferson County Circuit Judge Tracie Todd in March ruled in four of her capital murder cases that Alabama's capital punishment sentencing scheme is unconstitutional based on the Hurst case.

In its order the Alabama Court of Criminal Appeals told Jefferson County Circuit Court Judge Tracie Todd to vacate her March 3 order

In June the Alabama Court of Criminal Appeals ordered Todd to vacate her rulings and declared the state's law is constitutional.

Then on Sept. 30, the Alabama Supreme Court weighed in. The Alabama Supreme Court ruled in the case of death row inmate Jerry Bohannon that Alabama's death penalty law is constitutional in light of the U.S. Supreme Court's ruling in Hurst v. Florida.

Source: al.com, December 17, 2016

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