History of Alabama’s

 

Death Penalty

 

 by Randy Lewis

 

The death penalty in Alabama was designed as a means of punishing those individuals who committed the most heinous crimes. That which constitutes capital punishment is strictly of social interests and the values which exist during this time. Society in general often viewed the law, but not the constitution in order to authorize the imposition of the death penalty. During this time in Alabama’s history, especially during the civil war, when African Americans were mainly the ones to suffer more so than any other race. It seems as if capital punishment existed only for African Americans. During Alabama’s history involving the death penalty, the state revealed an attitude towards some aggravated circumstances/offenses, especially those involving the intentional killing of another.

 

In 1807, the legislative council and house of representatives of the Mississippi Territory enacted the first “Criminal Code” which was enforced in a territory, which would later become the State of Alabama. (See H. Tomlin, “A Digest of the Laws of the State of Alabama”, Tit. 17C1§23) Under this specific code, death by hanging was the authorized punishment. (Tit. 17C1§50), for 10 crimes in particular, which included: willful murder (Tit.17Chap.1§1), arson (Tit.17Chap.1§8), rape (Tit.17Chap.1§6), robbery (Tit.17Chap.1§10), robbery (Tit.17Chap.1§10), burglary (Tit.17Chap.1§12), treason (Tit.17Chap.1§2), slave stealing (Tit17Chap.1§18), selling a free person as a slave (Tit.17Chap1§7), and counterfeiting coins (Tit.17Chap.1§26).

 

In 1812 an amendment was passed specifying that three additional capital crimes: aiding any insurrection by slave to commit murder or rebel (Tit.17Chap.5§7), and forgery (Tit.17Chap6§6).

 

Each of those capital statutes were enforced under the first official Code of Alabama, which was enacted in 1852. Death by hanging was approved as one of several forms of punishment (§3069), however, even though it was clearly specified, usage of these punishments were very limited. Outside of various statutes involving slavery which was enacted in 1841, and was recoded under the 1852 Code (ss3306-3313), in which death could only be imposed in two situations: 1) where the defendant was convicted of murder in the 1^st degree (§3080) or 2) where the defendant was convicted of treason (§3075).

 

Cases of this nature, death could be imposed at the jury’s discretion. For other serious crimes under the Code deserved a lesser punishment of “life imprisonment”. These crimes were rape (§3090), carnal knowledge of a female 10 years of age or younger by administering any controlled substance which prevents an effectual resistance (§3041), and carnal knowledge of a female under 10 years of age (§3092). Other crimes considered serious now, were deemed punishable by imprisonment: robbery (no less than 10 years; §3104), burglary (three to fifty years; §3184), first degree arson (no less than fourteen years; §3193). As is apparent, under the 1852 Code, the usage of the death penalty was narrowly defined. The 1867 revised Code of Alabama (post-civil war) revealed that the legislative reconstruction expanded the crimes in which the death penalty was imposed significantly. Like the Code of 1867, authorized death by hanging as one of several forms of punishment, treason (§3547), and murder in the first degree (§3653), were specified as two crimes for which a sentence of death could be imposed; however, in addition to these crimes the legislature authorized the imposition of the death penalty, whenever a defendant was convicted of the following crimes: rape (§3661), carnal knowledge of any female above ten years of age by administering to her any controlling substance which prevents an effectual resistance (§3662), carnal knowledge of any female under ten years of age (§3663), carnal knowledge of any married woman by falsely impersonating her husband (§3664), robbery (§3668), and first degree arson (§3697).

 

The imposition of the death penalty in such cases was, as before, to be governed entirely by the jury’s discretion. All in all, the 1867 Code re-introduced itself to the pre 1836 treatment of these offenses. In short, the reconstruction in nature, provided that any person who committed the specified crimes “shall suffer death”. Excluding those statutes which were founded upon social values extent during the period when slavery was legal in Alabama, only the following crimes were deemed serious enough to warrant the death penalty: murder, arson, rape, robbery, burglary, treason, forgery and counterfeiting. By the close of the legislative general assembly in January of 1833, the death penalty laws of the state had not undergone any significant changes. (See J. Aikin, “A Digest of the Laws of the State of Alabama (1833))

 

The thirteen crimes previously specified were again found deserving of punishment. In addition, a new subsection was added to the criminal code entitled “Crimes and Misdemeanors by Persons of Color”. This subsection recognized three new capital crimes: any second conviction of an Negro or Mulatto (p.113, 575), accessory of any sort to a capital crime or maiming of any white person by a slave (p. 114, §78) and any attempt to commit a rape on any free white female by any person of color (p 114, §80). Outside of this subsection, the only new crime found under the Code was circulating seditions for the purpose of inciting insurrection among slaves (111, §66). The penalty under these statutes was again mandatory. The only major alteration of whether it was deemed procedural or substantive, that took place in the usage of the death penalty, was pursuant to (§36) of the 1833 Code, which provided that the death penalty could not be imposed except in those cases expressly authorized by statute. However, a major change took place on January 6^th, 1836, when the legislature of the state passed an act to mitigate the severity of its penal laws (1836 Ala.Acts, Act No 48). This act claimed that white citizens could no longer be punished for capital crimes of arson, robbery, or burglary. Blacks who were convicted of the same crimes, were more than likely sentenced to death. On the other hand, crimes of forgery and counterfeiting were reduced to terms of imprisonment.

 

The following crimes (excluding those based upon cultural and racial consideration) could be punished by the imposition of death: murder, rape and treason. As for these crimes, the death penalty was mandatory. In the year 1841, history was made in Alabama with the passage and enactment of Alabama’s first penal code. (See A. Meels, “A Supplement to Aikin’s Digest on the Laws of the State f Alabama (1841)) This code accomplished a variety of things, including the establishment of a statewide penitentiary system. As concerns of the usage of the death penalty, the language of prior statutes was removed and jury discretion was authorized. The statutes enacted at the time represented the forerunner of the death penalty statute eradicated in the wake of Furman v. Georgia (408U.S.238, 92 S. Ct.2126, 33L. Ed. 2d346 (1972)). Under the 1841 Code, the death sentence or the sentence of life imprisonment could be imposed for the following offenses: treason (Penal Code, Chap. II, §1), murder in the first degree (Penal Code, Chap. III, §1), aiding any insurrection by slaves (Penal Code, Chap. II, §2), circulating seditions by slaves (Penal Code, Chap. II, §4) and killing any slave in a barbarous manner (Penal Code, Chap. III, §5).

 

Rape, which under every statute prior to 1841 was punished for a capital offense, could now only be punished by life imprisonment (Penal Code, Chap. III, §14). Punishments for other previous capital crimes were reduced to terms of imprisonment (selling any free person as a slave reduced to ten years). Robbery was deemed punishable by imprisonment of no less than 3 years or no more than fifty years (Penal Code, Chap. IV, §64) and first degree by no less 14 years imprisonment (Penal Code, Chap. IV, §68). The final chapter of the penal code of (1841) pertaining to crimes by slaves and free negroes. As was true of the social values, this code treated individuals much more harshly. The imposition of the death penalty for the following crimes can only be explained by referring to Alabama’s history of conspiracy by any slave or rebel. (Penal Code, Chap. XV, §1), murder of any white person or assault with the intent to murder any white person by any slave (Penal Code, Chap. XV, §2), rape or attempt to commit rape of any white female by a slave or free Negro (Penal Code, Chap. XV, §3), burglary, robbery or maiming of any white person by a slave (Penal Code, Chap. XV, §4) and arson committed by a slave (Penal Code, Chap. XV, §5). These statutes were mandatory to follow.

 

The 1841 penal code remained unchanged until (1852). Although the legislature reinstated the death penalty, it did abrogate the statutes involving slavery under the code of 1852. The Code of 1867 also contained the very first statutes involving capital crimes committed by convicts serving a life sentence. Specifically, the Code stated that any convict sentenced to life imprisonment for crimes of murder (§3900), assault with the intent to commit murder (§3901) or to effectuate escape or the attempt thereof (§3902), should receive death penalty.

 

The 1876 Code of Alabama made no changes regarding Alabama’s death penalty statute. Discretion of the jury continued to govern its imposition of the following crimes: treason (§4296), rape (§4304), carnal knowledge of any female over ten years of age by administering any substance which prevents an effectual resistance (§4304), carnal knowledge of any female under ten years of age (§4306), carnal knowledge of an married woman by impersonating her husband (§4307), robbery (§4311), and arson (§4346). Likewise, the convict statutes remained the same except that any attempted or actual escape by an inmate serving life, were no longer punishable by death (See §§4598 and 4599). The 1887 Code of Alabama contained no changes whatsoever. Prior Alabama law was recoded, with only the death penalty remaining intact. Comparative sections such as treason (§3724), carnal knowledge of any female over ten years of age by administering any substance which prevents an effectual resistance (§3738), carnal knowledge of an female under ten years of age (§3739), carnal knowledge of any married woman by impersonating her husband (§3740), robbery (§3742) and arson (§3780). Jury discretion remained as the standard for imposing a sentence of death.

 

The 1897 Code of Alabama contained no significant changes. The only changes that did occur, involved the age specification in the carnal knowledge statutes, raised the age designation from 10 to 14 years. (See §§5446, 5447 and 5449) In addition, the 1897 Code added another capital offense, train robbery (§5480). Beyond that, the capital offenses remained the same. During the turn of the century, and with another version of the Code of Alabama, the death penalty remained a viable means of Alabama punishment for individuals who committed aggravated offenses. (See the 1907 Code of Alabama, §7620) The 1907 code added yet another capital offense to the ones that already existed. That offense was kidnapping for ransom (§6214). Besides that, the 1907 Code of Alabama was recoded prior to the existing statutes. The most important contribution in which the 1923 Code of Alabama would make regarding the history of the death penalty would continue to be imposed. Under Alabama’s previous codes and statutes, the method of “death by hanging” was at the time the only means of punishing defendants for capital crimes by virtue of (§5309) of the 1923 Code of Alabama. Afterwards, the method of “death by electrocution” would be required punishment for capital crimes. Other than the method of execution, the 1923 Code of Alabama remained entirely intact. The 1928 revised version of the Code of Alabama made no major changes regarding Alabama’s death penalty law. There was also another capital offense added: exploding or setting of dynamite in or under any steamboats, vessels, railroads car, prison, jail or any house or building that is occupied, or any inhabital dwelling (§3886). As in all capital cases, the imposition of the death penalty was to be at the jury’s discretion.

 

The older codes and statutes show the evolution of Alabama’s death penalty laws. In 1940 three additional capital offenses were added: attempted kidnapping (Tit. 14, §8), second degree arson (Tit. 14, §24), and burglary in the first degree (Tit. 14, §85).

 

In 1943 the legislature adopted the case Coleman v. Alabama (377 U.S. 129, 84 S. Ct. 1152, 12 L. Ed. 2d 190 (1964)) in which the U.S. Supreme Court called an “enlightened procedure” of an automatic appeal which now formulates a very important factor in achieving a uniform imposition of the death penalty. (1943 Ala. Acts, Act No. 249)

 

Prior to Furman (ignoring all the procedural developments in the administration of the death penalty), the following offenses were punishable by death by electrocution or life imprisonment at the discretion of the jury: treason (Tit. 14, §424), murder in the first degree (Tit. 14, §318), rape (Tit. 14, §395), carnal knowledge of any female over fourteen years of age by administering any substance which prevents an effectual resistance (Tit. 14, §397), carnal knowledge of any female under twelve years of age (Tit. 14, §398), carnal knowledge of a married woman by falsely impersonating her husband (Tit. 14, §400), robbery (Tit. 14, §415), kidnapping for ransom (Tit. 14, §7), attempting kidnapping (Tit. 14, § 8), first degree arson (Tit. 14, §23), second degree arson (Tit. 14, §24), first degree burglary (Tit. 14, §85), and exploding dynamite near an occupied dwelling (Tit. 14, §123).

 

Alabama’s history of the death penalty shows without question that throughout the state the legislature has authorized the death penalty for the intentional killing of another. During part of Alabama’s past, slaves and free Negroes were singled out for different treatment, these racially based laws were abrogated over a century ago, and until the court’s decision regarding the Furman case, crimes that fell under the Alabama death penalty statutes did not change. There aren’t any states currently which would indicate the number and how frequently the death penalty was imposed during the civil war or prior to the Furman case, but, any cases of a capital offense that were pending at the time the courts had ruled on the Furman case, were thoroughly examined by the court (U.S. Supreme Court). The United States took special interest in determining whether racial discrimination existed while reviewing pending capital cases.

 

Although Furman is not based upon the disparity of sentences in rape cases, it is suspected that racial discrimination was at the heart of this decision. Under Alabama’s death penalty statute, the crime of rape was no longer a capital offense. In Coker v. Georgia (433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)), the U.S. Supreme Court held that a sentence of death for rape was disproportionate to the offense. Two other cases concerning the same issue were before the U.S. Supreme Court at the same time as Coker v. Georgia, which were Jackson v. Georgia and Branch v. Texas, however the court did not rule on those cases, given that they (it) just ruled in favor of Coker.

 

The U.S. Supreme Courts research of prior convictions related to the Furman decision in which defendants were awaiting execution at the time of Furman had brought certain statistics to light. During the U.S. Supreme Court research, the convictions of the 23 individuals who were on Alabama’s death row at the time of the Furman v. Georgia case, were reviewed.

 

Those 23 cases were reviewed to determine the nature of the offense for which those defendants received the death penalty, the race of the defendants, and the victim’s race, mainly to determine a profile for those selected for the capital offense and to determine, whether racial discrimination could have affected the jury’s verdict in those cases. The data that the U.S. Supreme Court reviewed was not sufficient enough to support a definite conclusion on its behalf. However, the U.S. Supreme court did review the data and concluded that prior to Furman juries may have exercised their discretion on a racial basis; in cases of rape involving a black defendant and a white victim. The court excluded those cases not involving rape based on its examination of the data that’s available, it could not reach a conclusion to whether racial discrimination had affected the jury’s verdict in the remaining cases.

 

 

 

The data reviewed by the U.S. Supreme Court included here is for information purposes only. This data indicates the number of convictions per offenses at the time of the Furman case.

 

Charged offense	# of convictions
Rape	5
Rape, murder	2
Robbery, murder	5
Burglary, murder	5
1st degree murder	4
Multiple homicide	2

 

For these offenses, the statistics of the race of the defendant and the victim is listed as follows:

 

Race of defendant	Race of victim	#
Black	Black	3
Black	White	12
White	Black	0
White	White	6
Indeterminable from record		2

 

Excluding rape offenses, prior to and under the 1943 Statute which made rape punishable by death, is no longer punishable. The following statistics regarding race is applicable:

 

Race of defendant	Race of victim	#
Black	Black	3
Black	White	7
White	Black	0
White	White	6
Indeterminable from record		2

 

(The above statistics were after the 1943 statute.)

 

Given the fact that racial bias in the trial and sentencing process may have affected some of the past convictions, any practices of the past, deemed improper should not affect the current application of the death penalty under the guidelines that were set in Furman v. Georgia (408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)) and Beck v. Alabama (447 U.S. 625, 100 S. t. 2382, 65 L. Ed. 2d 392 (1980)). However, applications involving both cases are more than often violated in the State of Alabama.

 

The U. S. Supreme Court response to Furman was to commute death sentences to life imprisonment for all defendants who had been convicted under a sentencing phase which allowed jury discretion. The manner in which the U.S. Supreme Court handled those cases, is the procedure set forth in Hubbard v. State (290 Ala. 118, 274 So. 2d 298 (1973), 1^st degree murder) and Swain v. State (290 Ala. 123, 274 So. 2d 305 (1973), rape). Alabama legislature’s response to the U.S. Supreme Court’s decision in Furman was the passage of Alabama’s new death statute.(Act. No 213, Reg. Sess. Of 1975, Acts of Alabama p 701, approved September 9^th, 1975) After reviewing the death penalty law in Alabama prior to the Furman v. Georgia decision, the U.S. Supreme Court found that it was appropriate to review the cases tried under the law (post Furman) to compare cases of those defendants who had received the death penalty and to determine whether the juries acted arbitrary, recklessly, or capriciously.

 

After researching those convictions for which a death sentence was imposed under Alabama’s (1975) present death penalty statute, and that the court also used the information provided by defense counsel and state representative at the request of the court.

 

Based on the information available to the U.S. Supreme Court, where in 50 cases were reviewed, the court found that the following represents a breakdown of offenses between 1975 to 1980:

 

Offense	#
Robbery, intentional killing	33
Intentional killing of two or more individuals	8
Murder of a police officer	1
Murder when the defendant had been convicted of another murder	3
Murder by explosive device	1
Rape, intentional killing	1
Kidnapping, intentional killing	1
Offense not indicated by the parties	2

 

Of the 50 convictions, the following represents data based upon the race of the defendant and the victim:

 

Race of defendant	Race of victim	#
Black	Black	7
Black	White	21
White	Black	7
White	White	21

 

Pre and post-Furman statistics do not vary when it comes to the offenses, race of defendant and race of victim. The statistics of the Furman case do vary in one aspect. The number of individuals sentenced to death has increased compared to those sentenced to death since the Furman case has existed. But the increase of death sentences could be due to the crime rate increasing. As noted by Justice Powell in his dissenting opinion to Furman v. Georgia (408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)), joined by Chief Justice Burger, justice Blacknum and Justice Rehnquist:

 

“It is true that the sentencing rate might be expected to rise, rather than remain constant, when the number of violent crimes increase as it has in this country.”

 

(408 US. At 441, 92 S. Ct. at 2830)

The above information was provided by and is provided in Beck v. Alabama (447 U.S. 625, 100 S.Ct. 2382, 65 L. Ed. 2d 392 (1980)) and Beck v. State (396 So. 2d 645 (Ala.1980))

 

 

 

History of the Death Penalty 

In America

 

by Randy Lewis

 

The death penalty has always existed in the United states whether it was done legally or illegally. Executions were halted in the U.S. in 1973, pending the outcome of the Furman v. Georgia (case), 408U.S.238,414,92S.Ct.2126,2816,33L.Ed.2,.346(1972). This was a case involving how the death penalty was being applied. The U.S. Supreme Court held that imposition of the death penalty in certain cases would constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The United States Supreme Court’s decision in Furman v. Georgia caused many states to re-write their death penalty statues. However, in 1976, the death penalty was reinstated.

 

America has been the advocate for human rights abuse for a long time in various countries abroad; China, Iraq, Palestine, Kosovo, South Africa, Argentina. In each instance condemning the individuals and insisting on change, sometimes tied to sanctions and public censure. Americans are not accustomed to bearing witness to victims of systematic injustice at home, truth be told, “the lens is always pointed outward.

 

Wrongful convictions and condemnation of death inflicted upon innocent men/women isn’t new to the U.S. In fact, in 1820 two men were sentenced to (death) for the murder of an individual who just happened to be “alive and living” in the State of New Jersey. This incident was the first documented death penalty of this nature in the United States. Twenty-eight individuals who were exonerated from death row, spoke at the National Conference on wrongful convictions and the Death Penalty, which was held at the Northwestern University School of Law in the fall of 1998. Months later, Anthony Porter was exonerated two days before his scheduled execution. Professor David Protess of Northwestern University along with several of his students were prompted to investigate the circumstances surrounding Anthony Porter’s conviction, after his reprieve, they discovered evidence of his innocence. The center on wrongful convictions had concluded a full investigation into wrongful convictions and serious miscarriages of justice from 1999 – 2000 with private funds. The effect of their discovery were felt instantly due to multiple exonerations in the State of Illinois, Governor George H. Ryan declared a moratorium for executions. Soon after, there was a national examination of the death penalty.

 

In 1968, there was a case, Witherspoon v. Illinois, 391U.S.510,88S.Ct.1770,20L.Ed.2d776,46.O.O.2d368(1968), in which the United States Supreme Court had ruled that a sentence of death could not be carried out when the jury who recommended it was chosen by excluding venire men simply because they had voiced general objections to the death penalty or expressed morals regarding its infliction; constitutionally, no defendant can be put to death at the hands of a tribunal that’s selected. In 1977, the Supreme Court upheld that the death sentence for the crime of rape was disproportionate. (See Coker v. Georgia, 423U.S.584,97S.Ct.2861,532.Ed.2d982(1977)) In 1980, the Supreme Court upheld that a juror may not be challenged for cause based upon his/her views regarding capital punishment unless those views prevented or impaired their duties as a juror in accordance with his/her oath, but the state may ask that jurors will consider the facts then impartially and conscientiously apply the law as charged by the court. Adams v. Texas, 488U.S.38,100S.Ct.2521.65L.Ed.2d581(1980)

 

In 1985, the Supreme Court held that, as with any other trial, where the adverted party seems to exclude a juror, because of bias, the prosecution must show through questioning, that potential jurors lack impartiality, it is then up to the judge to determine whether the challenge is proper. The proper standard for determining when a prospective juror may be excluded for “cause” because of their views on capital punishment is whether the juror’s view would prevent or impair their duties in accordance with their oath. In addition to dispensing an references to “automatic” decisions making, this standard does not require that a juror’s bias be proved with unmistakable clarity. Wainwright v. Witt, 469U.S.412,105S.Ct.844,83L.Ed.2d841(1985)

 

In 1996, President Clinton signed the “AEDPA” or the Anti-terrorism and Effective Death Penalty Act. On April19, 1995 a tragic event had occurred that would change the Great Writ: a bomb exploded at the Alfred P. Marrow Federal Building in Oklahoma City, killing 168 people and injuring nearly 500 more. As a result of this event, the “AEDPA” was drafted, enacted, and signed.

 

Because of the AEDPA Habeas Corpus proceeding for state prisoners now have:

 

1. A one year statute of limitation (28U.S.C.2244(d)(1)(2006) (“A 1 year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court.)

2. A prohibition against successive applications for a writ except when, in very limited circumstances an appellate court (An appellate court is a court with jurisdiction to review decisions of the lower courts or administrative agencies.) grants prior approval; (28U.S.C.2244(b)(2006)

3. Restrictive limits on obtaining permission to appeal (to appeal is “to seek review from a lower court’s decision by a higher court”) decision of the trial court; (28U.S.C.2253(2006)

4. Modified exhaustion of remedies (Exhaustion refers to taken advantage of all available remedies) requirements for pursuing claims prior to seeking federal review, (28U.S.C.2254(b)-(c)(2006)

5. A requirement that federal courts defer to state court determination on Federal Constitutional issues; (28U.S.C.2254(D)(2006)

6. Additional restrictive procedures that became available to states if they conform with certain requirements (28U.S.C.2261-2266(2006)

 

In Atkins v. Virginia, the Supreme Court in 2002 ruled that the execution of prisoners deemed to be “mentally retarded” was illegal. The court reasoned that mental retardation diminishes personal culpability, and it makes the death penalty difficult to justify on deterrence and retribution grounds. In a later case Roper v. Simmons in 2005 the Supreme Court had ruled that executing juveniles 17 years old and under was illegal.