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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…

A quick death in Alabama

Anthony Ray Hinton
Anthony Ray Hinton
Alabama recently took a small but important step forward in reforming its criminal justice system when the legislature voted to eliminate judicial override in capital cases last month, but all of that progress could come to a screeching halt if the “Fair Justice Act” is allowed to pass. The deceitfully named bill (it is neither fair nor just) would shorten the time for appeals and reduce already inadequate resources that death row prisoners have when appealing their convictions. Alabama has clearly put its head in the sand and is ignoring its own disgraceful experience with wrongful convictions and the death penalty, as well as current recommendations from other states.

The Act, also known as SB 187, creates a unitary appeals process, which means that a capital defendant would pursue a direct appeal and post-conviction litigation simultaneously. It also imposes deadlines on filing the two separate processes, and additionally imposes deadlines for judges to rule on post-conviction litigation. Fast-tracking capital cases right to the execution chamber may be appealing to some, but these timelines ignore the purpose of the separate processes, the realities of capital litigation, and the risk these changes would pose to innocent defendants.

SB 187 has many flaws and the experiences of Colorado and Oklahoma highlight some of the worst. A unitary appeals system requires two attorneys to be appointed simultaneously for a single capital defendant. Both attorneys will require access to the defendant and access to copies of trial files and the record, which can be lengthy and expensive to procure. This is where wasted resources come into play. In a consecutive appeals process, attorneys often pass along the compiled files to the next attorney in line – here there will be two copies of everything, and who pays for that? The people of Alabama.

In a recent op-ed, Attorney General Steven Marshall argues that Alabama needs the Fair Justice Act, falsely stating that Anthony Ray Hinton, recently freed after spending 30 years on death row, would actually have been freed sooner under this Act.

Mr. Hinton has written an opinion piece too, noting that under the Fair Justice Act he likely would have been executed for crime he didn’t commit. He writes: “We do need significant reforms in Alabama but the legislation pending before the State House of Representatives is not the right way to proceed and would almost certainly have gotten me killed.” Hinton is one of six men who were wrongfully sentenced to death in the state since 1976.

Hinton, who has more moral authority on this subject than anyone in Alabama, stresses: “Executions are carried out in the name of the people of Alabama and we should all be concerned if we make our system less reliable and the execution of innocent people more likely.”

If Alabama lawmakers are genuinely interested in fair justice, they would not ignore the numerous reforms recommended in the 294-page report recently issued by the bipartisan Oklahoma Death Penalty Review Commission. And they certainly should be interested in fully funding a statewide public defender system with qualified counsel.

Because of the problems created by Oklahoma’s unitary appeals process – similar to that proposed in SB 187 – the Oklahoma Commission is recommending reverting back to a system where direct appeal and post-conviction processes would proceed consecutively – a system Alabama already has in place.

Colorado, which two decades ago adopted a unitary process much like the one set out in SB 187, learned a similar lesson. Now, even the original supporter of the law, former Colorado state representative Jeanne Adkins, admits that it has failed.

Last week, in stunted debate before the Alabama House Judiciary Committee, this relevant and compelling evidence about the failure of a unitary appeals process – as experienced by other states – was ignored and this morally objectionable legislation advanced.

If this Act passes, it will put innocent men like Anthony Ray Hinton at risk and it will move Alabama backwards and undermine much of the progress that has been made. Hopefully, reasonable lawmakers in the House will take a closer look and recognize that this "Fair Justice Act" is neither of those things and vote no.

Source: Montgomery Advertiser, Opinion, Ronald Sullivan Jr., May 3, 2017. Mr. Sullivan is a professor at the Harvard Law School, where he serves as the Director of the Criminal Justice Institute.

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