Last week, Don Siegelman and Robert Bentley, two former governors of Alabama, published a remarkable statement expressing their regret at having presided over executions while in office. Siegelman, a Democrat, was governor from 1999–2003 when Alabama carried out eight executions. Bentley was the state’s Republican chief executive from 2011–2017, a period during which the state put another eight people to death.
The statement is especially notable coming from these two: Alabama has historically been one of the heaviest practitioners of the death penalty in the country and has remained so even as the practice has begun to wane across the country. That these two former state chief executives are regretting their previous choices underscores the brutal and terrible effect that the death penalty has on anyone that it touches.
Siegelman and Bentley explained their change of heart about capital punishment by noting that they “have come over time to see the flaws in our nation’s justice system and to view the state’s death penalty laws in particular as legally and morally troubling. We both presided over executions while in office, but if we had known then what we know now about prosecutorial misconduct, we would have exercised our constitutional authority to commute death sentences to life.”
Living and learning is generally a good thing, and regret can prompt efforts at repair and redress. At the same time, regret has an odd, almost grotesque place in the world of the death penalty, because it cannot bring back lives unjustly or erroneously ended. But it can teach lessons to others.
Siegelman and Bentley’s belated regret should prompt public officials throughout the country to reconsider their current choices, and ultimately to end the “legally and morally troubling” practice of capital punishment while they still can.
Siegelman and Bentley begin the recitation of what they learned by highlighting the fact that since 1976, “nationwide, 1 person on death row has been exonerated for every 8.3 executions. That means we have been getting it wrong about 12 percent of the time.”
They go on to note that such wrongful convictions are “overwhelmingly the product of police or prosecutorial misconduct or the presentation of knowingly false testimony.” And they acknowledge the disparate racial impact of that behavior which “most frequently involves Black defendants (87 percent).”
Siegelman and Bentley are by no means the first officials to express regret about their involvement in the death penalty system and failure to oppose capital punishment in a timely fashion. In fact, confessions of regret by prosecutors, jurors, and prison wardens, among others, are almost as common as the death sentences and executions that prompt them.
Even Supreme Court justices are not immune from the death penalty regret syndrome. Several also had late-stage death penalty conversions, some while they were still on the bench and others only after they had retired.
For example, in 1991, four years after he retired, Justice Louis Powell, a longtime death penalty supporter and author of the Supreme Court’s infamous McCleskey v. Kemp decision—which upheld Georgia’s death penalty despite evidence it was practiced in a racially biased manner—told his biographer, John Jeffries, that “I have come to think that capital punishment should be abolished. (It) brings discredit on the whole legal system.”
When Jeffries asked the retired justice whether he regretted any of the decisions he made while on the Supreme Court, Powell replied, “Yes, McCleskey v. Kemp.”
Three years after Powell acknowledged his death penalty regrets, Supreme Court Justice Harry Blackmun discussed his own change of heart while still serving on the bench.
He used a dissenting opinion in Callins v. Collins to explain why he had come to regret his previous support for capital punishment.
New York Times columnist Linda Greenhouse observed at the time, “The opinion capped a long evolution for Justice Blackmun, who in 1972 was one of four dissenters from the Court’s opinion in Furman v. Georgia that declared all existing death penalty laws unconstitutional. Four years later, in Gregg v. Georgia, he voted to uphold the new generation of death penalty laws that ushered in the modern era of capital punishment.”
Blackmun, who was 87 years old when he dissented in the Callins case, himself explained, “There is little doubt now that Furman’s essential holding was correct. … Delivering on the Furman promise, however, has proved to be another matter.”
“Over time,” Blackmun continued, “I have come to conclude that … the decision whether a human being should live or die is so inherently subjective—rife with all of life’s understandings, experiences, prejudices and passions—that it inevitably defies the rationality and consistency required by the Constitution.”
Like Siegelman and Bentley, Blackmun concluded that “the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”
And he promised in Callins: “From this day forward, I no longer shall tinker with the machinery of death.”
But Blackmun failed to deliver on that promise or persuade others to join him. Two months later, he announced his retirement from the court.
Justice John Paul Stevens had been on the court for one year when, in 1976, it restored capital punishment after Furman had struck it down. Stevens supported that decision.
More than 30 years later, in 2008, he used a concurring opinion in Baze v. Rees to announce his own change of heart.
Like others who come to change their minds about the death penalty, he said, “that given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive importance to me. Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. … I have relied on my own experience in reaching the conclusion that the imposition of the death penalty … [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
Two years later, Stevens left the court. In retirement he continued to express regret about his previous support for capital punishment and called the death penalty “a wasteful use of resources with no demonstrated benefit to society. Taxpayers,” Stevens said, “should terminate this waste as expeditiously as possible.”
Siegelman and Bentley did not go as far as Powell, Blackmun, or Stevens in condemning capital punishment. They only called “for commuting the sentences of the 146 prisoners who were sentenced by non-unanimous juries or judicial override” in Alabama and establishing “an independent review unit … to examine all capital murder convictions.”
Still, their confession of regret is a reminder that the death penalty damages and diminishes everyone who authorizes it and carries it out.
Morris L. Thigpen, who ran Alabama’s Department of Corrections from 1987–1993, captures that reality when he says, “I have often heard individuals who have never participated in an execution say they would be more than willing to pull the switch, drop the pellet or inject the needle. On the other hand, I have never heard anyone who has participated in an execution say, ‘I would like to do that again.’ ”
“After each execution,” Thigpen explained, “I felt as though I left another part of my humanity and my spiritual being in that viewing room.”
That profound loss is why regret is so pervasive in America’s death penalty system, and why this country should end capital punishment and that cycle of regret forever.
