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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…

Judicial override may be dead after Alabama House vote

The chamber voted 78 to 19 for a bill sponsored by Sen. Dick Brewbaker, R-Montgomery, that ends the practice. The legislation goes to Gov. Robert Bentley, who said in a statement Tuesday evening he "looks forward" to signing the bill.

Alabama is the last state to allow judges to override verdicts in capital cases. If signed, Brewbaker's bill will become effective immediately.

"It was a bad practice," Brewbaker said in a phone interview Tuesday evening. "It showed a lack of confidence in Alabama juries, and I just think we came to the same conclusion of 49 other states. It just took longer."

The Montgomery County delegation -- Democratic Reps. Alvin Holmes, John Knight and Thad McClammy of Montgomery; Rep. Kelvin Lawrence, D-Hayneville and Republican Reps. Reed Ingram of Pike Road; Dimitri Polizos of Montgomery and Chris Sells of Greenville -- all voted for the bill.

Critics said judicial override put pressure on the state's elected judges to impose death sentences, whatever their merits. Rep. Chris England, D-Tuscaloosa, who handled Brewbaker's bill and sponsored similar legislation in the House, noted legislators had tried to end the practice for years.

"I think what changed is that we were the last state to do so," he said. "For a change, we jumped in front of something and fixed it."

The Montgomery-based Equal Justice Initiative says that 101 judicial overrides in Alabama from 1978 to 2016 changed a defendant’s sentence from life in prison to death. 11 changed the sentence from death to life. Brewbaker also cited statistics in Senate committee showing that 12 of 23 overrides conducted between 2005 and 2015 came in election years. The senator said Tuesday he believed those numbers helped move votes.

"No matter how you feel about override philosophically, no one thinks sentencing should be affected by the election cycle," he said.

The vote met with praise from anti-death penalty groups.

“Alabama should do everything it can to ensure that an innocent person is never executed," Ebony Howard, associate legal director of the Southern Poverty Law Center, said in a statement. "The bipartisan effort to pass a bill that would keep a judge from overriding a jury’s vote in capital cases is a step in the right direction."

Kimble Forrister, executive director of Alabama Arise, said in a statement that decisions about executions belonged in a jury's hands.

"Judicial override is about to become a thing of the past, and Alabama’s justice system will be better as a result," the statement said.

Sponsors expected a difficult fight over judicial override, but after getting out of the Senate Judiciary Committee -- which required a tie-breaking vote -- the legislation passed through both chambers with margins that surprised sponsors. The Senate voted 30 to 1 to approve the bill on Feb. 23. Brewbaker and England's bills bothsailed through House Judiciary Committee.

England's bill went somewhat further than Brewbaker's. Besides ending judicial override, the House bill initially would have also required a unanimous vote of a jury to impose a death sentence. Under Alabama law, 10 of 12 jurors must vote for the death penalty.

The Tuscaloosa representative never had high hopes the unanimous vote portion would survive, and said the votes were not in the house to carry that part of the legislation Wednesday. England accepted an amendment from Rep. Jim Hill, R-Moody, a retired judge, that stripped that language out. England also accepted language from Rep. Arnold Mooney, R-Birmingham, that made the bill prospective, not retroactive.

"We can’t afford any unintended consequences from a retroactive application of a statute like this," Mooney said.

Both amendments made England's bill like Brewbaker's, allowing Brewbaker's bill to be substituted and sent on to the governor. England said he might address the threshold issue it in a separate piece of legislation in the future.

"I always ask myself that question, 'Why would it take unanimous jury to convict, but less than a unanimous jury to send someone to death?'" England said. "But the legislative process is the art of compromise The overall objective is to end judicial override and make us like the rest of the country, and hopefully we’ve accomplished that today."

Brewbaker agreed, and said he believed the success of the judicial override bill would open the door for changing the threshold for jury votes on death sentences and trafficking laws.

"I don’t think there's an agreement on specific solutions," he said. "But I think people were willing to take a political risk because people on both sides were willing to consider it and take a chance."

Source: Montgomery Advertiser, Brian Lyman, April 4, 2017

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