Anthony Ray Hinton being released from Jefferson County Jail. Photo Cred: Hal Yeager/AP.
For 30 years Anthony Ray Hinton lived down the hall from “Yellow Mama,” the Alabama electric chair that, for decades, carried out the state’s executions before being decommissioned in 2002 and put in the attic at Holman Correctional Facility in Atmore.
Hinton, a black man from Birmingham, watched as 23 men went to go meet “Mama” during his time on death row at Holman. For 30 years, he sat in his cell and wondered when he would be called to meet “Mama” while he tried to prove his innocence in a state that, historically, had only exonerated four death row inmates.
On July 25, 1985, while at his mother’s house, Hinton was arrested and charged in the deaths of two men, one an assistant manager at a Mrs. Winners’ restaurant on Southside, and the other at a Captain D’s in Woodlawn. Authorities believed he was responsible for a string of robberies that left the two men dead and another wounded. The man who survived, who worked at a Quincy’s in Bessemer, identified Hinton as the man that shot him.
What happened in court involved a one-eyed defense ballistics expert — the only one Hinton’s lawyer mistakenly thought he could afford — and a prosecutor who described Hinton as “evil-looking.” The only physical evidence prosecutors said linked Hinton to the murders was ballistic. When all was said and done, Hinton was sentenced to death. And there he sat for 30 years, just down the hall.
On April 3, 2015, Hinton was released after the U.S. Supreme Court ruled he had ineffective defense counsel, after a reexamination of the ballistic evidence that could not prove that a weapon found in his mother’s home was the murder weapon, and after prosecutors dropped the charges. Jefferson County Circuit Court Judge Laura Petro dismissed the case.
Hinton became the 152nd prisoner released from death row in the United States since 1983. On June 9, Alfred Dewayne Brown, a Texas man on death row, was exonerated for the murder of a Houston police officer, marking the fourth death row case that has been dismissed by courts in 2015.
Hinton’s release helped spark up an old conversation, not just in Alabama, but nationwide; with so many people having been set free after being on death row, either because they were innocent or could not be proved guilty — on average, 4.75 people a year since 1983 — should the death penalty be put down?
Death in numbers
Alabama is one of the few states in the nation in which an elected judge can override a jury’s recommendation for a life-sentence and instead hand down the death penalty. To many advocates, this is a troubling loophole in Alabama’s judicial system.
“This judicial override was done in part to keep juries in check when it comes to handing out death sentences. But what has happened, remarkably, is that judges more often than not are the ones who override the jury and sentence someone to death,” said Robert Dunham, executive director of the Death Penalty Information Center (DPIC), a national non-profit that provides statistics about the death penalty.
“Judicial review was supposed to be an extra layer of protection for defendants, to protect them from runaway juries. But what we’ve seen in Alabama is that judicial override almost always runs in one direction. And that is towards death,” Dunham said.
Nationwide, the number of death row inmates has ballooned since the 1960s. In 1968, there were 517 inmates on death row in the United States. As of 2015, that number is up to 3,019. This is due in part to the fact that many of the inmates, like Hinton, have been on death row for decades.
This is in spite of the fact that since 1970, national murder rates have decreased from 7.9 murders per 100,000 people, to 4.7 murders according to data from the DPIC.
There have been a total of 1,409 executions in the United States since 1976, following a four-year hiatus when the Supreme Court ruled the death penalty to be unconstitutional in the 1972 landmark case of Furman v. Georgia.
It was later decided that each state would rewrite their death penalty statutes to avoid arbitrary sentencing. Currently there are 19 states that don’t have a death penalty, with Nebraska being the seventh state in just eight years to abolish capital punishment.
Numbers have indicated a shift in public opinion regarding the death penalty. A new poll conducted by Quinnipiac University shows that more Americans now prefer life without parole (48 percent) as opposed to the death penalty (43 percent) with 9 percent of people still undecided where they stand on capital punishment.
Support for life without parole has risen five percent since Quinnipiac last asked the question in 2013. In 2014, 72 people were sentenced to death, the lowest number in 40 years, perhaps reflecting the public’s wavering sentiment toward execution.
In Alabama, there are currently 198 inmates on death row — 43.55 per million residents, the highest number per capita in the nation. Since 1976, there have been 56 executions in Alabama. The state with the second highest number of death row inmates per capita is Nevada with 30.5.
According to the most recent census data, 26.6 percent of Alabama’s population is black. However, the percentage of black inmates on death row is roughly 52 percent —104 out of 198 total.
When segregation was the order of the day in the South, and during widespread efforts to integrate, the number of minorities executed far outweighed the number of white convicts put to death. From 1927 to 1976 there were a total of 153 executions in Alabama. Out of those, 126 of them were African-American according to the DPIC.
With that kind of disparity in the number of minority executions, experts like Dunham say that in Alabama, historically, the death penalty has been a tool for white supremacy.
52 percent of Alabama’s death row inmates are African American, despite only representing 26.6 percent of the state’s total population. Photo by gertjan hox/Flickr Commons.
Alabama minorities — the majority put to death
In 1931, nine teenage boys, all African-American, were accused of raping two white girls while hoboing on a freight train traveling from Chattanooga to Memphis. The police were later alerted to the alleged gang-rape by several passengers who jumped off the train somewhere near Painted Rock, Alabama.
The police stopped the train and arrested the nine teenagers who would later appear in the annals of history as the Scottsboro Boys (named after the town in Alabama where the original trial took place).
In the racially charged, segregated environment in which the trial took place, the accused received poor legal counsel, were subjected to violent mobs — they were nearly lynched by a mob before the grand jury handed down indictments — an all-white jury found eight of the nine defendants guilty and sentenced them to die.
The case was twice appealed to the United States Supreme Court, which led to the landmark decision Powell v. Alabama in 1932. The decision stated that the defendants would get a new trial and set a precedent for a defendant’s right to a fair trial with equitable representation. There were additional trials. During a re-trial, one of the alleged victims recanted her testimony — saying that none of the defendants were guilty — but a jury found them all guilty anyway. The judge threw the conviction out, ordering a new trial. There were protests of the convictions around the country, with thousands of people marching on Washington, according to “The Scottsboro Boys Trial: A Chronology” by the University of Missouri-Kansas City School of Law.
In end, despite what has been labeled a clear miscarriage of justice resulting in prison sentences for several of the Scottsboro Boys, none of them were executed. All nine were pardoned by Governor Robert Bentley in 2013.
Now, with the release of Hinton last April, five men in Alabama, not including the Scottsboro Boys, have been able to walk out of death row as free men. Which raises the question: How many innocent men and women have been executed?
“It’s still an affluent white man’s criminal justice system…Just one innocent death is intolerable. And there is no telling how many innocent people have been killed,” said Norm Pattis, author of several books, including Juries and Justice and a criminal defense attorney for 20 years.
He said that even now, money and race are both factors in whether or not a person will receive a viable opportunity to make their case in court. And he believes that even now, race plays a bigger factor when it comes to a fair chance at representation in a death penalty case.
“It’s driven in a substantial part by race,” Pattis said. “But race is also a big economic class distributor. So a poor black man is far more likely to be killed for the same crime an affluent white guy committed. The question is will an affluent black person get a better outcome than a poor black person? I think, nominally, yes. The number of challenges that can create from being able to afford a lawyer, how long and how hard you are willing you fight in the post-conviction hearings can be largely attributed to how much money you can spend.”
Alabama native Watt Espy, a professional researcher who had taken up an interest in capital punishment, took it upon himself to compile a comprehensive list of all the executions that have taken place in the United States and its territories from 1608 onward. In his report that he began working on in 1970, which is now known as the “Espy file,” he named 15,487 people who had been executed. Later in his life, Espy reportedly became an opponent of the death penalty because of the racial bias he found in the system.
A quick look at his report shows why Espy, who was once a proponent of capital punishment, might have become disillusioned with the death penalty. For instance, in Alabama, between the years 1840 and 1843, 36 black men were executed. During that same time period, only 5 white men were killed for similar crimes, all of them killed by hanging. This trend can be found in almost all of the years leading up to 1976.
Dunham said that particularly in the South, the vestiges of Jim Crow can still be found in the criminal justice system.
“Some of the states that have used [the death penalty] most frequently are unfortunately the ones that have some of the greatest stains of historical injustices,” Dunham said. “A lot of the southern states have long histories of race discrimination in the criminal justice system. And of course that starts with the legacy of slavery and Jim Crow. A lot of people think that as a psychological matter, the death penalty was simply a legislative substitute for the discrimination that took place in those states.”
If someone doesn’t have financial access to quality representation, Dunham explained, then that person is much more likely to receive a death penalty than someone who can afford to pay lawyers to fight their case over the course of several years. Sadly, Dunham said, class status still to this day plays a huge role in a person’s conviction.
“Yellow Mama,” the Alabama electric chair was decommissioned in 2002 and now resides in the attic at Holman Correctional Facility in Atmore. Photo by Lucinda Devlin.
“First time I’ve felt the rain in 30 years”
The tears fell freely as Hinton stepped out of the Jefferson County Jail and into the arms of his family and friends. He was entering into a world he hadn’t known in some time. In many ways it was a familiar world with simple pleasures long forgotten, he said.
“This is the first time I’ve felt the rain in 30 years,” Hinton said as ABC News cameras followed him after his release. “It feels amazing.
“They had every intention to execute me for something I didn’t do. For all of us who say that we believe in justice, this is the case to start showing people,” Hinton said during his brief comments to the press after he was released. “As for the victims’ families, I will continue to pray for you, just as I have for the last 30 years. It was a miscarriage of justice not just to me, but also to the victims.”
The most critical piece of evidence in Hinton’s case was the gun, which was found at his mother’s house the night of his arrest, Dunham explained. During the trial, Hinton’s defense attorney thought he could only afford a one-eyed ballistics expert, a civil engineer, who was elderly, and more of an expert in military ordnance than in ballistics.
“He was so inept during the trial, he had to have help to turn on the machine to look at the bullets… The prosecution just tore him apart,” Dunham said. “Miraculously, he actually made the correct determination, but the prosecution worked him over so badly that the jury didn’t consider his opinion.”
“All they had to do was test the gun,” Hinton said after his release. “But when you think you’re high and mighty and above the law, you think you don’t have to answer to nobody. But I got news for you, everybody that played a part in sending me to death row will answer to God.”
What happened to Hinton back in 1985 demonstrates how access to money often makes the difference in the outcome of a case, Dunham explained.
“The Alabama system of indigent representation is not regarded as one of better in the country. The indigency of the defendant places him or her at risk of an unfair death sentence. Race plays big role in this as well. You don’t need to look further than Anthony Ray Hinton for evidence of this,” Dunham said.
“Basically he was a prime suspect in the murder based on an erroneous identification by one of the victims. That turned out to be a demonstrative error. During the time of one of the murders, he was in a locked warehouse working, sweeping floors and he had signed in there. His boss even corroborated this in court,” Dunham explained.
The victim in question worked at a Quincy’s steakhouse and identified Hinton as the man who shot him. While Hinton had an alibi, prosecutors at the time attacked the contention that Hinton was unable to leave work and commit a robbery. They did not try him in the Quincy’s case, however.
Nonetheless, the prosecution focused their attention toward convicting Hinton. At one point, Dunham said, the prosecutor made an overtly racist comment toward Hinton, saying, “Anyone could tell he was evil just by looking at him.”
Thirty years later, he was released and the charges dropped. “So somehow, this one-eyed ballistics expert, all along, had formulated the correct scientific opinion,” Dunham added.
Hinton’s case has shed light on a series of problems with the lack of consistency among death penalty sentences, from admissible forensic evidence to eyewitness testimonies that result in a conviction, Dunham said.
So what can be done to reform the death penalty in a system that favors the affluent and punishes the poor?
The future of death row
“I think we put a lot more innocent people to death than we anticipate or even want to think about,” said Susan Watson, executive director of the American Civil Liberties Union of Alabama.
Watson, who came to Alabama by way of Florida, said that while she lived there over 20 innocent people were exonerated from death row. According to data from DPIC, Florida has exonerated 24 inmates, while it has carried out 90 executions since 1976.
Time Magazine recently ran a cover story, titled, “The Last Execution,” which examines the future of the death penalty in the United States.
“In Florida alone, three other men who arrived on death row in 1975 are still there, marking their 40-year anniversaries — part of a total death-row population in that state of 394. (In those 40 years, Florida has carried out 90 executions. At that rate, the Sunshine State would need about 175 years to clear out its death row),” David Von Drehle wrote.
While the DPIC does not take a formal position on the death penalty, the ACLU is vocally opposed to it. “We should stop it completely. We are working right now to abolish the death penalty altogether in Alabama,” Watson said.
During this year’s legislative session, there was a bill introduced to the Senate — SB 11 — which was written as a way to reinstate electrocution as the primary method of execution.
“Under existing law,” the bill reads, “a death sentence is executed by lethal injection unless a person sentenced to death affirmatively elects to be executed by electrocution. This bill would require a person sentenced to death after the effective date of the act to be executed by electrocution if lethal injection is ruled unconstitutional by the courts or if an ingredient essential to carrying out a lethal injection is unavailable to the Department of Corrections.”
Watson said she believes this bill, which did not pass through committee, was written because the availability of the drugs necessary to carry out a lethal injection are becoming increasingly hard for states to acquire. “Other countries are not sending some of these drugs to the United States any more and they are getting increasingly harder to obtain,” Watson said.
Despite having lots of practice, corrections officials are not becoming any more efficient when it comes to killing people, not just in Alabama, but nationwide, Watson said.
“In April 2014, Oklahoma authorities spent 40 minutes trying to kill Clayton Lockett before he finally died of a heart attack. Our long search for the perfect mode of killing — quiet, tidy and superficially humane — has brought us to this: rooms full of witnesses shifting miserably in their seats as unconscious men writhe and snort and gasp while strapped to gurneys,” Von Drehle wrote.
Dunham believes that states like Nebraska, which recently abolished the death penalty, serve as experiments to see how individual jurisdictions will handle capital punishment in a judicial landscape where death is off the table. Eventually, he said, if more states begin to do away with the death penalty, due in part to the increasingly difficult process of obtaining the lethal drugs, perhaps the U. S. Supreme Court will take another look at the constitutionality of executions.
“I think that in a lot of ways what happened in Nebraska is a microcosm for what’s happening in the rest of the country,” Dunham said. “Just take a look at public opinion polls. In a 1994 Gallup poll, the support for the death penalty was at 80 percent. If you take a look at the most recent poll by the Pew Research Council, it shows support for the death penalty at 56 percent. It’s been a steady downward trend for the last 20 years.”
As for Alabama’s current situation, in which an elected judge, who may or may not have something to gain politically by favoring the death penalty, can override the opinion of the jury, Dunham believes there is a dire need for judicial reform.
“The Alabama problem is a substantial problem,” Dunham said. “There are a separate set of issues that you have in states where a death decision is made by an elected official. When somebody’s political interests are in repeating their position, they have to make very difficult decisions about whether or not someone dies. I think the political concerns as opposed to just judicial concerns will come into play in a big way, even if a judge may not be consciously aware of it.”
