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Toforest Johnson shows who Alabama’s death penalty serves

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Toforest Johnson shows who Alabama’s death penalty serves

Dec 11, 2023 | 7:59 am ET
By Brian Lyman
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Toforest Johnson shows who Alabama’s death penalty serves
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The American flag flying at Holman Correctional Facility on Oct. 22, 2019 (FIle)

Toforest Johnson should not be on death row.

I’m not the first person to think that. I doubt I’ll be the last.

A jury convicted Johnson in 1998 of the murder of William Hardy, an off-duty Jefferson County sheriff’s deputy shot and killed in a parking lot on the morning of July 19, 1995. Police arrested Johnson a few hours later.

There is no physical evidence linking Johnson to the crime. A jury deadlocked on his conviction at a first trial. At a second, prosecutors put a witness on the stand who had repeatedly changed her story about the shooting, a person prosecutors called a “liar” at the first trial. The testimony helped lead to a conviction.

Another witness, Violet Ellison, claimed that she heard a man named “Toforest” confess to the crime on a three-way prison phone call. Ellison, who had never heard Johnson’s voice before this alleged conversation, approached the police to collect a $5,000 reward, which she was later paid. That fact could have been used to question her account. Prosecutors did not share that information with Johnson’s attorneys.

None of these facts are new. I first wrote about the case over six years ago. Journalist Beth Shelburne recently broadcast an extensive look at Johnson’s case.

Nor is Johnson fighting alone. Former Alabama Chief Justice Drayton Nabers and former Alabama Attorney General Bill Baxley have called for a new trial. Three jurors in Johnson’s case have also expressed doubt about his conviction.

Toforest Johnson
Toforest Johnson (Alabama Department of Corrections)

In 2020, Jefferson County District Attorney Danny Carr added his voice to the calls, citing concerns about the witnesses.

But Johnson remains on death row.

The Alabama Supreme Court, without comment, denied his petition for a new trial in December. The U.S. Supreme Court did the same in October.

The Alabama Attorney General’s Office argued in a brief filed last year that Johnson already had a chance to make his arguments about the flaws in his conviction, or as they wrote three times, “previously raised, considered, and rejected in Johnson first Rule 32 proceeding.”

The process, it seems, is more sacred than the outcome.

If you care about justice, this should outrage you.

But the death penalty isn’t about justice.

It’s about politics.

Alabama’s use of the death penalty is a disaster. The state botched three executions in 2022. In 2020, Alabama executed Nathaniel Woods for being present during the murder of three police officers, despite the fact he never fired a weapon. Next month, it will attempt to execute a inmate by nitrogen suffocation, a new and untried method of execution. Its haphazard attempt to inform inmates of this new method of death in 2018 has led to years of litigation.

Faced with the myriad problems of capital punishment in Alabama, Alabama lawmakers have done nothing beyond a tepid “moratorium” imposed by Gov. Kay Ivey after the botched executions. Ivey lifted it after the Alabama Department of Corrections announced that it had conducted a self-evaluation of its execution methods, which (as far I know) has never been made public.

If you really cared about the proper application of this terrifying power, you would want to ensure every step in the process is perfect, down to the molecular level.

If you use it to win votes, the calculations change.

Supporting capital punishment not only allows you to make an utterly uncontroversial statement that you oppose crime (who doesn’t?), it carries the implication that anyone who doesn’t is weak — or maybe a mobster — and cuts off more difficult discussions about public safety and rehabilitation.

When an execution takes place, your state leaders can make public statements about justice being done, whatever miscarriages preceded the execution.

And if this system forces families to relive their trauma through numerous rounds of appeals (generally a far longer process than life without parole), the politician can share his or her outrage and shift the blame away from the people who could actually fix it — themselves — to incarcerated people exercising what few rights they have.

There’s really no other reason to keep the death penalty.

Capital punishment does not deter crime. Certainly not in Alabama, which has executed 72 people over 40 years but had the United States’ third-highest homicide rate in 2021.

As for trying to serve crime victims and families, feelings will obviously vary depending on the person. But we know that crime victims who don’t want the death penalty will be ignored. The family of Faith Hall opposed the execution of Joe Nathan James Jr., convicted of her murder in 1994.

State officials barely acknowledged their concerns, and let James’ execution go forward. It was, by several witnesses’ accounts, a torturous death.

And the expressed concerns for victims of crime seem hollow after years of neglect of the Alabama Crime Victims Compensation Commission, leading to backlogs and delays in helping crime victims and their families with expenses after their tragedies.

So far, none of this has affected the state’s attitude toward death. No one got punished for the appalling miscarriage of justice with Woods. And voters seem indifferent to the stories of torture that came out of the Atmore death chamber last year.

Which means we can expect more miscarriages of justice and more appalling execution stories in the future.

If Johnson manages to secure a new trial — and he should — there will be talk that the system can work.

It cannot. Not from a justice standpoint.

A criminal justice system that cared about getting things right would have released Johnson long ago.

In the criminal justice system as it is, Johnson is another casualty of the political pushes that keep Alabama’s machinery of death turning, and brutalizing all of us.

Toforest Johnson should not be on death row. He remains there because injustice is very useful to Alabama’s leaders.

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