On May 28, 2009, U.S. Special Investigator Phillip Alston submitted a report about the death penalty in the United States to the United Nation’s Human Rights Council in Geneva. Alston expressed particular concern about the very real possibility that innocent people have been, and will continue to be, put to death in United States death chambers. He was troubled by the fact that 130 death row inmates had been exonerated across the nation since 1973.

“While I was in Texas,” Alston wrote, “the conviction of yet another person on death row was overturned by the Court of Criminal Appeals. Although in that case DNA testing ultimately prevented the execution of an innocent man, other possible innocents have been less fortunate. In many cases, either because of inadequate laws or practices governing the preservation of evidence or because of the passage of time, there is no longer any physical evidence that can be DNA tested and potentially exonerate the inmate. In those states, legal barriers—such as lack of a post-conviction DNA access laws—make DNA testing difficult for death row inmates to obtain. In yet other states, biological evidence is immaterial and other evidentiary or procedural issues preclude a just or reliable basis for imposing the death penalty.”

While he noted that Texas has executed more people than any other state, Alston stressed that the State of Alabama leads the nation with the highest per capita execution rate. “In Alabama,” he wrote, “the situation remains problematic. Government officials seem strikingly indifferent to the risk of executing innocent people and have a range of standard responses to due process concerns (which are sometimes seen as ‘technicalities’), most of which are characterized by a refusal to engage with the facts. When I confronted them with cases in which death row inmates have been retried and acquitted, officials explained that a ‘not guilty’ verdict does not mean the defendant was actually innocent and that most defendants ‘played the system’ and probably was guilty. But the truth is that Alabama’s capital system is simply not designed to uncover cases of innocence, however compelling they might be. Alabama may already have executed innocent people, but its officials would rather deny than confront criminal justice system flaws.”

That’s pretty harsh criticism, but it is probably deserving. The New York Times recently carried an online report that characterized the Alabama death penalty as one of the worst in the nation. The state has a long, sordid history of abusing and neglecting its inmates in general. The federal courts have waged decades of judicial efforts to get the state to recognize just the basic human rights of its incarcerated population.

Alabama is a “deep South” state—one with a terrible history of racism, lynchings, and determined efforts to keep the impoverished in the shackles of ignorance and deprivation. It was probably inevitable that the state would eventually emerge as the most callous and brutal in the death penalty arena. While Texas’ death penalty system is influenced by a harsh “frontier-type” of justice (borne of the “hang the sonuvabitches high” mindset), race does not play the kind of traditional factor in its killing machine as it does in Alabama. That “old South” bastion still longs for the days of George Wallace standing in the school house doors saying “hell no” to racial integration.

While it is doubtful that Alabama’s criminal justice officials will pay little heed to the U.N. commissioned report, Alston made some timely and specific recommendations that should be implemented nationwide to protect the human rights of all death row inmates: “Given the rising number of innocent people being exonerated nationwide, both state and federal Governments need to investigate and fix the problems in their criminal justice systems. As a start I recommend that: (1) problems already recognized as such, including lack of judicial independence and the absence of an adequate right to counsel, should be addressed immediately; (2) systematic review of criminal justice system flaws, including racial disparities in capital cases, should be undertaken to identify needed reforms; and (3) federal courts should be authorized to review all substantive claims of injustice in capital cases. In light of the United States’ international law obligations with respect to the death penalty, I also recommend that (4) state and federal legislatures ensure that the death penalty only be applied for the ‘most serious crimes’; and (5) review and reconsideration be provided to foreign nationals on death row who were denied the right to consular notification.”

 Perhaps President Obama, who has a history of death penalty reform, may take the moral lead during his second term to press for these and other reforms in the American death penalty system. It is an effort he cannot afford to politically undertake in his first term, first, because he has too many other more pressing issues to deal with, and, second, it would provide his opposition forces with more conservative political fodder against him. But a second Obama term may offer an opportunity to implement serious death penalty reforms like those advocated by Alston.