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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…

How Alabama chooses who to execute on death row next

Cell door
This story is a part of Ask Alabama, where you ask the questions, you vote to decide which questions we answer, and then we investigate.  

This week we're answering a question submitted by a reader from Hamilton who asked: 

How does the state of Alabama decide the next death row prisoner to execute?

John Palombi knows a thing or two about death row. Four of five of his clients make up the entirety of executions in Alabama since Christopher Eugene Brooks was put to death in January 2016 for the rape and murder of Jo Deann Campbell in 1992. Before that, it had been two and half years since a death row inmate had been executed.

"It can be a difficult job sometimes. It has its fair share of ups and downs," said the assistant federal defender with the Office of the Federal Defender for the Middle District of Alabama.

But the process to get to the stage where an inmate is strapped to a gurney in the execution chamber inside Holman Prison in Atmore can often take decades. The process is arduous and complex, as Palombi explains.

"Once someone gets sentenced to death there's an automatic appeal in the state court system," he said. "Then after that it goes to the Alabama Supreme Court for the next part of the appeal, and then a person can ask the U.S. Supreme Court to take a look at their case. That's very, very rare. That's at the end of what we call direct appeal."

After that comes the next stage, known as the state post-conviction appeal, also known as collateral attacks on the conviction, according to the Alabama's Death Penalty Appeal Process manual, a state-issued document that explains how appeals work. That's where the defense team look to find new evidence, instances of juror misconduct, or the most common thing is what's known as ineffective assistance of counsel, which is a claim that your initial attorney didn't do a good job defending you at trial.

Then it moves on to the federal portion of the process. This is where Palombi comes in.

"Once it hits federal court any issues that were raised way back during the direct appeal and any issues that were properly raised in the state portion of the collateral attack can now be raised again in federal court as long as they are federal constitutional issues." This is where the petitioner argues that the conviction should be overturned as it was obtained in violation of the inmates federal Constitutional rights. According to the Constitutional Rights Foundation, those could be the prospect of "cruel and unusual punishment" not having access to the due process of law, the promise of equal protection of the laws, and a fair trial.

It's at this stage that the inmate becomes eligible for an execution date.

Some of his clients went from trial to execution in as "little" as 15 years. And some take up to 25 years. In one anecdote, Palombi said that one of his clients was tried, convicted, and sentenced to death, but because sentencing errors were found at the appeal stage the entire process was delayed further. "We sent it back and he got another hearing, but then we found another mistake in the sentencing paperwork," he said. "So we sent it back for a third time. These issues can add years to the timeframe."

The average wait time for execution is about 14 years, according to statistics from the Alabama Department of Corrections.

To bring down the time frame and prevent the process from slowing down, which has primarily come from legal challenges, Alabama introduced the Fair Justice Act in May 2017. The new law reduces the appeals time in capital cases by requiring convicted persons to file post-conviction claims at the same time as appeals, according to the ACLU. This means that two processes at the state stage are combined. 

So in all there are a maximum of 10 stages that a death row inmate will go through before execution. After that, the individual becomes eligible for an execution date. 

"It's at this stage, after all appeals are exhausted where the Attorney General of Alabama asks for an execution date from the Supreme Court of Alabama," according to Palombi. "So it's less about the state choosing the next inmate and more about the completion of the process."

Source: al.com, Christopher Harress, December 31, 2017


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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