A week before the crowds arrived in Montgomery for the opening of the National Memorial for Peace and Justice, a monument to victims of lynching in the United States, Alabama prepared to kill 83-year-old Walter Moody. From his death watch cell at Holman prison, Moody called his attorney the night before he was to die. “He said, ‘An EMT was just in here and he seemed concerned about my veins,’” said Spencer Hahn, a lawyer with the Alabama Middle District Federal Defender.
There were good reasons to worry. Moody would be the oldest person executed in the so-called modern death penalty era — and problems finding viable veins had led to an unprecedented disaster at Holman a few months before. For more than two hours, prison personnel had tried and failed to place intravenous lines into the body of 61-year-old Doyle Lee Hamm. The execution was finally called off close to midnight, leaving Hamm bloody and traumatized. His lawyers called it torture. But the state was dismissive. “I wouldn’t necessarily characterize what we had tonight as a problem,” Alabama Department of Corrections Commissioner Jeffrey Dunn told the press.
Hahn filed a last-minute motion on Moody’s behalf, to no avail. On April 19, he and his boss, Christine Freeman, made the trip down I-65 to Holman to witness the execution. Moody was the seventh client Freeman has seen put to death. It began like all the others. “They open the curtains, the prisoner is there on the gurney,” she said. Moody’s arms were extended, forming the eerie crucifix shape. There was just one problem. Their client appeared to be sound asleep.
“I thought he was dead,” Hahn recalls. “He was breathing so shallowly.” But officials carried on as if everything were normal. The warden entered the execution chamber with a microphone. Speakers were flipped on for witnesses to hear as she read the execution order aloud. Then, absurdly, the warden asked the unconscious Moody if he had any last words. “She holds the microphone up and then she just quickly pulls it back and turns and walks away,” Freeman said.
“I think he was given a drug,” Freeman said. “I don’t know what the drug was, I don’t know if he asked for it or not.” To execute a man potentially unaware that he was about to die would be a serious violation of his rights. In fact, just weeks earlier, the U.S. Supreme Court had blocked another Alabama execution amid concerns over the condemned man’s dementia. But Dunn denied anything was amiss. Moody was pronounced dead at 8:42 p.m.
The state’s nothing-to-see-here posture was a “façade,” Freeman said, but it was one she has come to expect. In December 2016, Alabama executed her client Ronald Bert Smith, who “heaved and coughed and clenched his left fist,” as one media witness reported. “It was just awful to see,” Freeman recalled. Rather than investigate what went wrong, Alabama officials “launched a campaign of obfuscation and misinformation about what happened to him,” Freeman’s former colleague, an outspoken critic of Alabama’s lethal injection regime, wrote. “They just say whatever needs to be said, in order to ensure that they get to continue to do what they do,” Hahn said.
This is not just true in Alabama. I was at the prison known as the Cummins Unit the night Arkansas killed Kenneth Williams in April 2017 — the last in a series of controversial executions using a new lethal injection protocol. Defense attorneys had warned for months that things were likely to go wrong, but the state refused to listen. Press witnesses returned to the media room with disturbing reports, describing how Williams convulsed and struggled for breath before he died. But a governor’s spokesperson declared that everything had gone fine. In the year since the execution, I could not shake the brazen denial; the chilling directive that witnesses ignore what they saw; that it had not really happened that way.
“This system pushes everyone into a place of unreality,” said Freeman. It reminded me of the words of an anti-lynching activist I read before arriving in Alabama. “A lynching makes a lot of otherwise good people go blind or lose their memories.”
“What Led to This Point?”
The office of Alabama’s Middle District Federal Defender sits on a quiet block in Montgomery, just a mile up the road from the Equal Justice Initiative. The famed legal nonprofit was founded in 1989 by renowned capital defense attorney Bryan Stevenson, who has attended his own share of executions. Stevenson has made it his life’s work to transform how Americans think about our criminal justice system, by tracing its origins and making them visible. Outside its downtown headquarters on Commerce Street, a historical marker stands where “enslaved people were marched in chains up the street from the riverfront and railroad station to the slave auction site or to local slave depots.” In a state that officially celebrates Martin Luther King’s birthday alongside that of Robert E. Lee, it is part of a broader effort, EJI explains, to “reshape the cultural landscape” to “more truthfully and accurately reflect our history.”
On April 26, EJI opened two new monuments in Montgomery: the National Memorial for Peace and Justice — commemorating more than 4,400 victims of lynching in the United States between 1877 and 1950 — and the Legacy Museum, which traces the evolution from “mass enslavement to mass incarceration.” A two-day Peace and Justice Summit at the convention center brought musicians, food trucks, and speakers like Michelle Alexander, U.S. Rep. John Lewis, and film director Ava DuVernay. The lynching memorial commanded the most attention. The long pavilion stands on a hill overlooking Montgomery, where Confederate monuments sit close to historic sites of the civil rights movement. On opening day, visitors and volunteers crowded the entrance. Inside, a wide path opened and turned toward the memorial, past a sculptor’s arresting portrayal of anguished men and women in shackles. Along a wall, large signs narrated the end of the slave trade to the collapse of Reconstruction and the emergence of “racial terror lynchings” as a means of enforcing white control of the South.
Entering the memorial at the top of the hill, steel rectangular columns stood at eye level, suspended from metal poles. The coppery orange pillars looked weathered and scarred, each one engraved with the names of counties and the lynching victims who died there. Some had only first or last names, others read “Unknown.” Walking further into the memorial, the floor began to curve and descend and the columns got higher and higher, until eventually the rows hung in an overwhelming canopy.
There were some 840 pillars total. Visitors quietly sought out those associated with their family roots, taking pictures with their phones. The names were largely unfamiliar to me — generations of men, women, and children buried in revisionist history. But many locations were all too familiar. One of the first I saw was Lincoln County, Arkansas, where Kenneth Williams was executed. Six lynchings were inscribed on its surface.
Near the entrance, I found Butts County, Georgia, the site of only two recorded lynchings — a small number for Georgia. But Butts County is home to the Georgia Diagnostic and Classification State Prison in Jackson. Troy Davis was killed there in 2011. I was outside the prison five years later, when a man named Kenneth Fults was executed despite the racist remarks of a juror, who said, “I don’t know if he ever killed anybody, but that nigger got just what should have happened.”
Further down, I found Sunflower County, Mississippi, the site of 12 recorded lynchings, and where I once toured the execution chamber at Parchman Farm. Near the exit was West Feliciana Parish, most famous for the Louisiana State Penitentiary — a former slave plantation known as Angola, the country from which its inhabitants were stolen. Men still work the fields at Angola. Most are black, and the majority are serving life sentences. When I visited years ago, members of the Angola Three had been locked in solitary confinement for nearly four decades.
Of the seven lynchings recorded on the pillar for West Feliciana Parish, the last took place in 1933 — the decade in which lynchings began to decline and legal executions rose throughout the South. In 1947, the U.S. Supreme Court considered the case of a black teenager named Willie Francis, who had gone to Louisiana’s electric chair but, gruesomely, survived. In a decision still cited today, the majority found that attempting to kill him again would not violate the Eighth Amendment. “Accidents happen,” the ruling read, “for which no man is to blame.”
Lynchings were once carried out “at the hands of persons unknown,” in the official language of the state. Though the identities of the perpetrators were often an open secret, newspapers “absolved their local leaders of responsibility,” Sherrilyn Ifill writes in “On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-First Century.” Aided by a compliant press, a “consensus story” formed: “The lynchers were ‘outsiders’ who could not be recognized.”
Photo left: Bill Allen/AP. Photo right: Bettmann Archive/Getty Images.
Stevenson calls the death penalty the “stepchild of lynching.” At the Legacy Museum, the parallel is starkly drawn. Yet historians who have probed the precise connection have been hamstrung by an absence of reliable data. The federal government never bothered to count the thousands of lynchings that terrorized black communities across the country; and it did not start keeping track of legal executions until 1930. That there is any historical record of lynchings is thanks to institutions like the Tuskegee Institute and activists like Ida B. Wells. A database of early executions exists because of the work of Watt Espy, an Alabama researcher who died in 2009. Nevertheless, the link is unmistakable in the South, where both lynchings and early executions were lawless forms of racial control. Public executions looked a lot like lynchings — and the justifications for both were often the same.
But even as lynchings persisted in the early 20th century, legal executions began to evolve, “from widely attended public hangings to tightly controlled official events held under high security in state prisons,” as Memphis historian Margaret Vandiver writes in “Lethal Punishment: Lynchings and Legal Executions in the South.” Today, the legal framework governing the death penalty is complex and impenetrable — and executions are more secretive and sanitized than ever. This long evolution can make the link between lynching and the death penalty feel tenuous and disorienting in 2018. Last year in Charleston, South Carolina, I watched as Dylann Roof was sentenced to die for the slaughter of nine black people, under the authority of a black president.
I came to Alabama to bridge another disconnect, one that spans my own lifetime: the distinction we created between the “modern death penalty era” and everything that came before. In between are the four years separating two landmark Supreme Court rulings: Furman v. Georgia, which struck down the death penalty in 1972, and Gregg v. Georgia, which upheld it in 1976. Gregg ushered in an age of state-sanctioned killing that would transform executions to look modern and humane, while closing a chapter in death penalty history that is now rarely invoked. For all the data we have amassed showing discrimination in capital punishment, its roots in racial terror have been severed from our collective memory. Today, even abolitionists describe the death penalty as “broken,” as if there were ever a time when it was carried out fairly, as a legitimate expression of society’s outrage.
For Freeman, who drove past the site of the pavilion almost every day as it was under construction, walking through the memorial was a jolt of perspective. “When you’re caught up in the minutia of your case, you’re not saying, ‘How did we get to this point?’” she said. EJI reminds us that “we created a bunch of laws to keep people in prison so that they could provide labor. And then the rest of us started to assume those laws made sense. And then we demonized certain portions of our citizens, and people started to think that made sense. I think it’s really critical that we always ask why,” she said. “Why are we here? What led to this point?”
A New Order of Things
Eufaula, Alabama, sits on the border with Georgia, some 85 miles southeast of Montgomery. On the cusp of Alabama’s Black Belt, the city was once prosperous from cotton plantations and a railroad built by slave labor, later becoming the “fugitive seat of the Government of Alabama,” toward the end of the Civil War. Today, Lake Eufaula is famous for big mouth bass, and its historic district is lauded in travel magazines. A Confederate monument overlooks a traffic circle downtown, where every spring the “Eufaula pilgrimage” features Southern belles in hoop skirts welcoming visitors to tour antebellum architecture.
Like other parts of the South after emancipation, Eufaula was the site of violent measures to roll back the gains made during Reconstruction. On the morning of Alabama’s critical 1874 elections, members of the White League carried out a notorious slaughter of black Republicans in Eufaula, driving scores of would-be voters from the polls. The mob later broke into a polling place north of town, fatally shooting the teenage son of a white Republican judge. Today, on U.S. Highway 82, a historical marker commemorates the “Election Riot of 1874,” which “marked the end of the Republican domination in Barbour County.” No black victims are mentioned.
In a sunny history of Eufaula published the following year, a local writer celebrated a renewed sense of optimism — “a new order of things is fully inaugurated,” he wrote. Just as the Black Codes did after the Civil War, new laws re-criminalized black people; in “Black Prisoners and Their World: Alabama, 1865-1900,” historian Mary Ellen Curtin describes how these years “established a solid practice of whites turning to the courts to prosecute African Americans for purposes of social control.” Between 1874 and 1877, she writes, the black incarcerated population of the state tripled. Convict leasing became the law of the land.
At the same time, lynchings were on the rise. In 1881, a black man in Eufaula was chased across the border to Georgia and killed by a mob for allegedly assaulting a white girl. “There was a rumor among the blacks that the wrong man had been hung,” the Eufaula Times and News reported, “but the writer, as well as every one who has taken the pains to learn the facts, knows that such was not the case.” Like many newspapers in the South and North alike, the Times and News wrote approvingly of lynchings, particularly to punish “outrageous assaults upon white women,” as the Eufaula newspaper wrote in 1885. Such crimes were increasing, it warned — and lynchings were “the only remedy.” The article dismissed those who denied that lynching worked as a deterrent. “White men and law-abiding tax-payers do not care to feed, week after week in jail, and incur other expenses in bringing to punishment such fiends in human shape.”
There was no evidence behind the hysteria over sexual violence against white women by black men. But the manufactured threat had embedded itself firmly in the Southern psyche. According to EJI, “Nearly 25 percent of the lynchings of African Americans in the South were based on charges of sexual assault” — and an allegation alone was enough. When pioneering journalist Ida B. Wells dared to suggest that the real fear animating such propaganda was of miscegenation – and showed evidence that some lynching victims had, in fact, been in consensual, clandestine relationships with white women — she was forced to flee her home in Memphis.
Wells’s defiant activism would spur a wave of bad press about Southern lynchings. After a series of her lectures abroad, Southern governors felt compelled to respond. “I am opposed to lynch law for anything but rape,” the governor of South Carolina insisted in a 1884 letter printed in the Eufaula Times and News. The governors of Georgia and Virginia were also “highly indignant,” another Alabama newspaper reported, reminding readers that while lynch mobs might be deplorable, the crimes they sought to punish were far worse. Undeterred, Wells published the Red Record the following year, including lynching statistics and featuring a postcard from a lynching in Clanton, Alabama. Activists would learn to weaponize such photos in the years to come, and eventually lynchings would fall out of favor. But even in 1895, the Eufaula Times and News showed a shift in rhetoric. There were doubts over the guilt of a recently lynched man in Florida, the paper reported that summer. Hasty acts of passion did not “make the same profound impression that imprisonment, trial by jury, and legal execution carry with them. Lynchings are not as deterrent of crime as legal punishment.”
In 1900, as Alabama prepared to ratify a new constitution enshrining white supremacy by law, a major event was held in Montgomery: the first conference of the Southern Society for the Promotion of the Study of Race Conditions and Problems in the South. Over three days in May, speakers looked to the future, while bidding good riddance to the dangerous ideas of the Reconstruction era. “In that day, miscegenation was by many looked upon with so little of horror that even Alabama judges on our Supreme Court bench decided that no law of the State could interfere with the right of whites and negroes to intermarry,” a former Alabama congressman declared in his introductory remarks. Fortunately, he added, a new legal era was in place, “and we shall never more hear of such decisions.” Still, the “Negro problem” had not been resolved. Conference attendees agreed that the 15th Amendment had failed, that science proved the inferiority of black people, and that the abolition of slavery had spawned a generation of black men who posed a threat to white women everywhere.
On the third day, a lawyer from Atlanta delivered a lecture titled, “The Punishment of Crimes Against Women, Existing Legal Remedies and Their Sufficiency.” “Even some of those who decry lynching and wish to have punishment meted out according to law are clamoring for some new method of procedure and punishment, which shall not only swiftly annihilate the criminal; but strike terror to the ignorant and criminals of the race,” he announced. South Carolina was leading the way, he noted. The previous year, newspapers had reported the state’s “first legal execution for criminal assault.”
Rape had long been punishable by death in the South, at least when the victims were white, but capital punishment had largely subsided at the time. In Alabama, according to the Espy File, no legal executions had been carried out from 1869 to 1874. But soon Southern states began to revise their death penalty laws. As Northern states had done decades before, many states moved executions away from public view and inside local jails, although certain exceptions remained, ostensibly to serve as a deterrent. “In 1901,” Stuart Banner writes in “The Death Penalty: An American History,” “Arkansas abolished public hanging except for rape, a crime for which capital punishment was in practice largely limited to blacks. … Kentucky, which had abolished public hanging in 1880, brought it back for rape and attempted rape in 1920, at the discretion of local officials.”
Newspaper reports from the turn of the century show a series of “firsts” throughout the South. In 1905, the first legal execution for “criminal assault” in North Carolina’s Sampson County was attended by 25 people, who had bought tickets for the occasion. That same year, Fulton County, Georgia carried out its first legal execution for criminal assault, hanging the “Negro assailant” of the wife of an Atlanta merchant. Legal executions were spreading for new crimes as well. In 1903, three black men were hanged for robbery for the first time in Alabama. That same year, 5,000 people attended the first legal execution in Randolph County, Alabama. The Advertiser reported it in detail, describing a number of humane touches: the man’s “hearty breakfast,” a last cigarette that evening, and the moving goodbye between the condemned and his wife. (“Seldom is such faithfulness seen in the colored race.”)
The rise of legal executions was widely regarded as a positive trend. In April 1903, an Alabama paper reported that Mississippi had not seen a single lynching since the start of the year. Records suggested the reason was a “plentitude of legal hangings.” Still, lynchings continued, and newspapers defended those they deemed justified. In 1906, two black men accused of raping white children were seized from a train by a lynch mob in Mobile. The governor was notified but did not intervene. “The Mob Was Very Orderly,” the Montgomery Advertiser wrote, noting that even a “legal hanging could not have been more quiet.”
By 1915, according to EJI’s Lynching in America, “Court-ordered executions outpaced lynchings in the former slave states for the first time.” In Alabama, following the botched hanging of a white man — “Grewsome and Harrowing Scenes enacted at County Jail Today Demand Change In This State,” the Montgomery Times announced — officials decided that it was time to make executions more befitting of a civilized age. Other states had already begun killing people by electrocution, a modern marvel that captured the popular imagination. In 1923, Alabama joined other states in moving executions to the middle of the night and the first electric chair was installed in Montgomery’s Kilby prison.
The first to die in the electric chair was a black man named Horace de Vaughn. The Montgomery Advertiser described an air of solemnity — de Vaughn was respectful, sitting down unassisted, and the prison “was wrapped in absolute silence.” A doctor declared it the best execution he’d ever seen, the newspaper announced. “Alabama justice has been carried into execution in as quick, painless and clean a manner as science has been able to devise.”
The trials that led to state-sanctioned executions were utterly devoid of due process. But that would begin to change, at least in theory. In 1932, the U.S. Supreme Court took on one of the most famous miscarriages of justice in American history: the case of the Scottsboro Boys, nine youths accused of raping two white women in 1931. Newspapers called them “fiends” and mobs gathered outside the courthouse during their trials, where they were represented by incompetent attorneys, one of whom was visibly drunk. The Supreme Court found that the men’s right to a fair trial had been violated. But similar “legal lynchings” would continue. In 1944, South Carolina executed a 14-year-old boy named George Stinney, convicted in 10 minutes by an all-white jury.
In the meantime, as Alabama’s electric chair approached its 10-year anniversary, the Montgomery Advertiser assessed its record. “Of the 55 who passed through the little green door to die,” it reported, “47 were negroes and eight were white.”
A State of Denial
The lynching marker in Tuscaloosa is located on Sixth Street, in front of the old county jail. A couple blocks east, a six-lane boulevard cuts through downtown, named for the wife of segregationist ex-Gov. George Wallace. On the other side, a cluster of trendy shops and restaurants leads to the University of Alabama campus. On the Saturday after the EJI Peace and Justice Summit in Montgomery, a free outdoor concert attracted a mostly white crowd to an event called Alabama Roots Fest.
The lynching marker on the other side of the boulevard was placed by EJI in 2017. The last victim mentioned, David Cross, was shot to death in 1933 by a mob dressed as police officers, who accused him of trying to assault a white woman at a country club. “The County Sheriff later stated that the woman Cross was accused of assaulting had in fact never been attacked,” it reads.
On the South Side, just over the railroad tracks in a black neighborhood people still call Shacktown, I met the family of a man on Alabama’s death row who maintains his innocence. The man’s fiancée, a teacher named Crystal, had not been to Montgomery for years — she was only vaguely aware of EJI’s new memorial and museum. “That’s a good reason to go,” she said. History is not accurately taught in Tuscaloosa, she told me. The “misleading” begins as early as pre-K, she said, when kids learn about Christopher Columbus. “When it comes to black history, it’s just that one month.”
The link between lynchings and the death penalty felt logical to Crystal in a way that racism in Tuscaloosa is instinctive and familiar. “You just kind of have to live it,” she said. Black people in Tuscaloosa are heavily policed, including by campus officers with the University of Alabama. “They tolerate the athletes,” Crystal said, but black people from her side of town otherwise stay away.
In the ’50s and ’60s, the university was the scene of riots protesting desegregation. Years before Wallace notoriously blocked the schoolhouse doors on campus, a black woman named Autherine Lucy was briefly enrolled at UA, only to be met by mobs who threw eggs, burned desegregationist literature, and waved Confederate flags. The university board expelled Lucy — ostensibly for her own protection – but she would return to the College of Education decades later. Last year, six months after EJI erected the lynching marker, the university honored Lucy with a historical marker of her own, lauding her role in making the university “truly ‘one for all.’”
The Tuscaloosa campus holds a piece of EJI’s history too. When the office first opened in 1989, under the banner of the Alabama Capital Representation Project, its original headquarters were at the law school building. In his best-selling memoir, “Just Mercy,” Bryan Stevenson describes how the university withdrew its support within the first few months of operation, “and we discovered just how hard it was to find lawyers to come to Alabama and do full-time death penalty work for less than $ 25,000 a year.” Months later, the office moved to Montgomery.
When Stevenson first arrived in Alabama in the early 1980s, the state was outpacing the rest of the country in sending people to death row. There was no public defender system, Stevenson writes, “which meant that large numbers of death row prisoners had no legal representation of any kind.” Stevenson had not planned to stay in Alabama. He had come to the South as a Harvard law student, to take an internship with the Southern Prisoners Defense Committee in Georgia. He often tells the story of meeting then-Director Stephen Bright, a famed capital defense attorney, on a layover to Atlanta. Bright became an instant mentor. “We can’t help people on death row without help from people like you,” he told Stevenson. For more than a year, Stevenson slept on Bright’s living room couch while learning to defend indigent clients.
Bright was among the speakers at the Peace and Justice Summit in Montgomery. In a brown suit and tie, he described how he has seen the legacy of lynching in capital cases throughout his career. Today, he said, “80 percent of all death sentences are in states from the old Confederacy.” He repeated a line he had written many years ago, in an article called “Discrimination, Death and Denial.” American criminal courts are the institutions “least affected by the civil rights movement.”
A major reason is the judiciary’s longtime failure to acknowledge the racism in the criminal justice system. Even as the U.S. Supreme Court sought to impose due process in capital cases, decades of rulings would immunize the criminal justice system from challenges based on race. Bright has described countless examples in his writing; in the court’s 1965 ruling in Swain v. Alabama, the justices upheld a death sentence out of Talladega County, whose population was more than a quarter black, even though there was evidence “that due to peremptory challenges, no black person had ever served on a jury in either a criminal or civil case.” The ruling — “disapproving of racial discrimination but allowing it to continue by setting a virtually impossible standard of proof” — was the controlling law for 20 years.
It was around this same time that the NAACP Legal Defense and Education Fund (LDF) set out to prove what many had long known to be true: that the death penalty was particularly racist when it came to rape cases, a direct legacy of lynchings. In the summer of 1965, a group of law students traveled South to gather statistics; one case they found was that of Billy Maxwell, sentenced to death in 1962 for the rape of a white woman in Arkansas. At trial, Maxwell’s lawyer had shown evidence that, of 20 men convicted and sent to die for rape between 1930 and 1960, “all but one was black,” one participant wrote years later. Armed with additional statistics, Maxwell’s case made it all the way to the U.S. Supreme Court, which vacated his death sentence. But it did so on a different matter, leaving the issue of race unaddressed.
Just a few years later, thanks to the ongoing work of the LDF, the court handed down its landmark decision in Furman v. Georgia. The justices had been presented with exhaustive statistics laying out the death penalty’s racial bias. Yet in a series of separate opinions, the majority mostly talked around race, describing death sentences as “arbitrary” and “capricious.” A national moratorium on executions followed — but that did not stop states from continuing to send people to death row. No sooner did state legislatures pass new statutes than prosecutors sought new death sentences. In 1976, the Supreme Court upheld a new set of laws in Gregg v. Georgia, giving the green light to restart executions.
“To think that all of the problems identified in Furman — the racism, the consequences of poverty — to think that you could have that fixed in four years was just so incredibly preposterous,” Bright told me a few years ago. Perhaps more absurd, in 1977 the justices struck down the death penalty for rape in Coker v. Georgia, while managing to avoid mentioning race at all. But its most devastating decision regarding race and the criminal justice system came 10 years later, in the case of Warren McCleskey, a black man represented by Stevenson and Bright. In its 5-4 decision in McCleskey v. Kemp, the court said discrimination in the criminal justice system was “inevitable,” in the words of Justice Lewis Powell, and held that a sentence was not unconstitutional unless a defendant could prove that the racial bias had been intentional — a “crippling burden of proof,” as described by the LDF. Anthony Amsterdam, the lawyer who argued Furman before the court, called McCleskey “the Dredd Scott of our time.”
Legal scholars have since exposed one concern underlying the decision in McCleskey. “Although the point was not discussed in the majority opinion,” writes Jeffrey Kirchmeier, author of “Imprisoned by the Past: Warren McCleskey and the American Death Penalty,” the justices were concerned that a ruling in favor of McCleskey would effectively dismantle the death penalty. “During the justices’ discussion of the case,” Kirchmeier writes, “Powell warned in an interoffice memo, ‘This case presents, as we know, an attack on capital punishment itself.’”
By then, the Supreme Court’s refusal to acknowledge racism had already enabled plausible deniability about the death penalty’s discriminatory application. In Alabama, where the fight over passing a new death penalty law after Furman split lawmakers along racial lines in 1973, one Mobile Republican was offended when a black representative asked his colleagues to search their consciences and warned that reviving the death penalty would turn the clock backward for black people. “When the Brown v. Board of Education decision came out, I applauded,” he said. “But I feel you are guilty of racism in reverse.”
“They Brought the Tree From Outside”
On a residential block in Mobile, Alabama, a historic marker stands in front of an old oak tree, commemorating the last lynching in the state. “On March 21, 1981,” it reads, “19-year-old Michael Donald was abducted, beaten, killed, and hung from a tree on this street by members of the Ku Klux Klan.” The marker, installed in 2009 as part of Mobile’s African American Heritage Trail, described how the crime — “retaliation for an interracial jury failing to convict a black man for killing a white Birmingham policeman” — led to a famous civil suit against the Klan, brought by Donald’s mother and the Southern Poverty Law Center, which bankrupted the KKK.
The Donald case also marked a turning point in Alabama’s death penalty history. At the time of the lynching, lawmakers had been forced to revise their new death penalty law, after sections had been overturned by the U.S. Supreme Court. In July 1981, a new law took effect in Alabama. Modeled after Florida’s death penalty law, it was controversial for allowing non-unanimous juries to recommend death sentences. Yet another critical provision was overlooked: the vast discretion it gave to judges to override jurors in capital cases.
As Henry Hays, one of Donald’s murderers, went to trial in 1983, evidence of racism in Alabama’s death penalty system had already emerged. That year, a Talladega College professor presented findings that Alabama had the highest percentage of black people on death row among Southern states — and study of death sentences from 1976 to 1981 had showed that killing a white person in Alabama was 10 times more likely to face the death penalty than someone who killed a black person. Officials issued vociferous denials — “There’s no way that can be true,” said Alabama Assistant Attorney General Ed Carnes, who helped author the law. But after Hays was convicted in December 1983, the mostly white jury recommended a life sentence — the perfect emblem of Alabama’s racist double standards.
Because Donald’s murder predated the new legislation, the trial judge was not technically authorized to override the jury’s sentence in Hays’ case. But in early 1984, he did so anyway. Some applauded the move, but others saw it as a cynical deflection — a way to show that Alabama’s death penalty wasn’t racist after all. In the decades that followed, Alabama became notorious for “judicial override.” The power was eagerly exploited by the state’s elected judges, who could boast on the campaign trail about their death penalty record. By the time judicial override was finally abolished last year, Mobile led the state in capital prosecutions; in 2016, the Harvard-based Fair Punishment Project named it a death penalty “outlier,” one of the few remaining places in the country where prosecutors still aggressively seek death sentences.
Today, the legacy of Alabama’s 1981 law is evident in the words of a trial judge who, in 1999, explained why he overrode the jury in sentencing a white man to die. “If I had not imposed the death sentence,” he said, “I would have sentenced three black people to death and no white people.”
“They have to put a few white guys on death row to make you think it’s not about race,” said Anthony Ray Hinton. We were at the EJI office in Montgomery, talking about Dylann Roof. Cases like that are a “distraction,” Hinton said. If executions don’t look like lynchings anymore, it’s only because the machinery is different. “They brought the tree from outside and put it inside.”
Hinton knows too well how racism drives the death penalty in Alabama. Sentenced to die in 1986 for two murders he didn’t commit, he spent nearly 30 years on death row before being exonerated with the help of EJI in 2015. In his memoir, “The Sun Does Shine,” Hinton describes how his cell stood 30 feet from Alabama’s execution chamber, so close he could smell the burning flesh of men killed in the electric chair. He was still on death row when the state switched to lethal injection in 2002. As in other states, the protocol was designed to look humane. But Hinton knew better than to consider it any less cruel. When we met, he was still disturbed by Doyle Lee Hamm’s bloody ordeal months before.
At the EJI summit in Montgomery, where he spoke alongside Stephen Bright, Hinton had become emotional as he described how the state has yet to acknowledge his wrongful conviction. “To this day,” he said, “nobody in the governor’s office or the attorney general’s office or nowhere has had the decency to say, ‘Mr. Hinton, we’re sorry.’” Freeman was in the audience that afternoon. For her decades doing capital defense work in the South, his story made deeply her indignant. “It’s just this denying, denying, denying,” she said. “We just don’t want to believe that our system is that fallible. … In my view, it is part and parcel with the commissioner standing up and saying, ‘It all went according to plan.’”
For Hinton, telling his story is exhausting — “like reliving a nightmare,” he told me. But it is the only way to combat the state’s denial. So he tells it over and over again. Fifty-four executions were carried out while Hinton was at Holman. Among those friends he saw walk to their death was Henry Hays, the former Klansman sentenced to die in 1984. Hays, Hinton says, changed in the years he lived on death row, and the men formed an unlikely bond. On the night Hays died in 1997, Hinton and the men on death row banged the bars so that he would hear them. “Black. White. It didn’t matter,” Hinton writes. “I screamed so that whoever was there to watch the state of Alabama kill in their name knew that we were real men and that you couldn’t hide us under a black hood and pretend we didn’t feel pain.”
For lawyers like Freeman, who cannot protest, the experience is another kind of denial. It is a strange thing, she says, to fight for years for your client’s life only to sit still and watch as the state kills them in the name of the law. “You look at them and think, ‘Aren’t I supposed to do something? Aren’t I supposed to go up to the wall and bang on the window and say, Stop it?’” she said. “But everybody’s such a cog in the machine at that point. Nobody stops it.”
On June 1, a new law went into effect in Alabama, allowing condemned prisoners to choose a new way to die: nitrogen gas. Like his predecessors did when promoting the electric chair and lethal injection, the sponsor of the legislation vowed the new execution method would be humane, although it has never been used before. In the meantime, I returned from Montgomery to a letter from death row, written by the man whose family I met in Tuscaloosa. He said he knew Doyle Lee Hamm — they had lived in the same unit for years. “To hear how they tortured him broke me down,” he wrote. “It shook me up. I closed down in my cell and just laid in the dark.”
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