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The Death Penalty in Alabama – Judicial Override Lives Another Day

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November 18, 2013

Today, the United States Supreme Court announced that it would not hear a challenge to the constitutionality of a piece of Alabama’s sentencing scheme for capital murder. At the heart of the petitioner’s challenge was the claim that the “judicial override” provision of Alabama’s law is unconstitutional and should be struck down.

In plain English, in Alabama, the judge, not the jury, has the final say over whether someone convicted of capital murder will receive a sentence of death or life imprisonment without the possibility of parole. When the guilt phase of capital trial has concluded, the trial then moves into the “punishment phase.” The State puts on evidence of “aggravators” to show why this defendant should get the death penalty instead of a sentence of life without parole. The defense team them puts on evidence of “mitigators” to make the case for mercy and life without parole. At the conclusion of this “punishment phase” of the trial, the jury votes to determine what they would recommend. Technically speaking, the jury has to vote 12-0, 11-1 or 10-2 in favor of the death penalty for the vote to count as a recommendation for death. Any other vote tally is considered a recommendation for a sentence of life without parole.

In the end, it’s up the to the judge to decide: the judge reweighs the aggravating evidence, the mitigating evidence and the jury’s recommendation before making a final determination on the sentence. If the jury votes for life without parole, the judge can “override” the jury’s recommendation and impose the death penalty.

This happens quite frequently. You may remember the Auburn University student Lauren Burk who was killed by a former Iraq war veteran, Courtney Lockhart. The jury unanimously recommended that Mr. Lockhart serve the rest of his natural life in jail. However, the trial court judge disagreed and sentenced him to death over the jury’s recommendation.

Fast-forward to today. A couple of months ago, the Equal Justice Initiative in Montgomery asked the United States Supreme Court to take another look at this “judicial override” provision of the Alabama capital sentencing scheme. It was their argument that Alabama was an outlier – the only state out of the 32 states that still have the death penalty that still uses judicial overrides. While three states still technically allow for judicial override (Florida, Indiana and Delaware),  since 2000 Alabama has accounted for 26 of the 27 instances of judicial override and the 27th (in Delaware) was thrown out.

Today, the Supreme Court informed us that it declined to take up the case. We don’t know why they decided against reviewing this issue, but we do know that back in 1995, the Supreme Court affirmed the constitutionality of Alabama’s “judicial override” provision in a case called Harris v. Alabama.

Justice Sotomayor dissented from the Court’s decision not to review the case because she believed much had changed since the 1995 decision in Harris. Justice Sotomayor explained:

In the nearly two decades since we decided Harris, the practice of judicial overrides has become increasingly rare.  In the 1980’s, there were 125 life-to-death overrides: 89 in  Florida, 30 in Alabama, and 6 in Indiana. In the 1990’s,  there were 74: 26 in Florida, 44 in Alabama, and 4 in Indiana. Since 2000, by contrast, there have been only 27 life-to-death overrides, 26 of which were by Alabama judges.

As these statistics demonstrate, Alabama has become a clear outlier. Among the four States that permitted judicial overrides at the time of Harris, Alabama now stands  as the only one in which judges continue to override jury verdicts of life without parole. One of the four States,  Indiana, no longer permits life-to-death judicial overrides  at all. See Ind. Code §35–50–2–9(e) (2004). Only one defendant in Delaware has ever been condemned to death  by a judicial life-to-death override, and the Delaware Supreme Court overturned his sentence. And no Florida  judge has overridden a jury’s verdict of a life sentence since 1999. In sum, whereas judges across three States  overrode roughly 10 jury verdicts per year in the 1980’s and 1990’s, a dramatic shift has taken place over the past  decade: Judges now override jury verdicts of life in just a single State, and they do so roughly twice a year.

These numbers are pretty surprising. Judge Sotomayor digs a little deeper and asks some tough questions:

        What could explain Alabama judges’ distinctive procliv­ity for imposing death sentences in cases where a jury has already rejected that penalty? There is no evidence that criminal activity is more heinous in Alabama than in other States, or that Alabama juries are particularly lenient in weighing aggravating and mitigating circumstances. The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures. See Symposium, Politics and the Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure? 21 Fordham Urban L. J. 239, 256 (1994) (comments of Bryan Steven­son) (concluding, based on “a mini-multiple regression analysis of how the death penalty is applied and how override is applied, [that] there is a statistically significant correlation between judicial override and election years in most of the counties where these overrides take place”); see also Equal Justice Initiative, The Death Penalty in Alabama: Judge Override, at 16, Override_Report.pdf (as visited on November 15, 2013, and available in Clerk of Court’s case file) (hereinafter Override Report) (noting that the proportion of death sentences imposed by override in Alabama is elevated in election years). One Alabama judge, who has overridden jury verdicts to impose the death penalty on six occasions, campaigned by running several advertisements voicing his support for capital punishment. One of these ads boasted that he had “‘presided over more than 9,000 cases, includ­ing some of the most heinous murder trials in our history,’” and expressly named some of the defendants whom he had sentenced to death, in at least one case over a jury’s contrary judgment. Override Report 16. With admirable candor, another judge, who has overridden one jury verdict to impose death, admitted that voter reaction does “‘have some impact, especially in high-profile cases.’” Velasco, More Judges Issue Death Despite Jury, Birming­ham News, July 17, 2011, p. 11A. “‘Let’s face it,’” the judge said, “‘we’re human beings. I’m sure it affects some more than others.’” Id., at 12A. Alabama judges, it seems, have “ben[t] to political pressures when pronounc­ing sentence in highly publicized capital cases.” Harris, 513 U. S., at 520 (Stevens, J., dissenting).

         By permitting a single trial judge’s view to displace that of a jury representing a cross-section of the community, Alabama’s sentencing scheme has led to curious and potentially arbitrary outcomes. For example, Alabama judges frequently override jury life-without-parole verdicts even in cases where the jury was unanimous in that ver­dict.In many cases, judges have done so without offering a meaningful explanation for the decision to disregard the jury’s verdict. In sentencing a defendant with an IQ of 65,for example, one judge concluded that “‘[t]he sociological literature suggests Gypsies intentionally test low on standard IQ tests.’”Override Report 20 (quoting Sen­tencing Order in State v. Neal, No. 87–520 (Baldwin Cty Cir. Ct., May 17, 1990)). Another judge, who was facing reelection at the time he sentenced a 19-year-old defend­ant, refused to consider certain mitigating circumstances found by the jury, which had voted to recommend a life­ without-parole sentence. He explained his sensitivity to public perception as follows: “‘If I had not imposed the death sentence, I would have sentenced three black people to death and no white people.’” Override Report 20 (quot­ing Tr. of Sentencing Hearing in State v. Waldrop, No. 98– 162 (Randolph Cty Cir. Ct., July 25, 2000)). These results do not seem to square with our Eighth Amendment juris­prudence, see Furman, 408 U. S., at 274 (Brennan, J., concurring) (“In determining whether a punishment com­ports with human dignity, we are aided by [the principle] that the State must not arbitrarily inflict a severe pun­ishment”); Gregg, 428 U. S., at 188 (joint opinion of Stew­art, Powell, and Stevens, JJ.) (“Furman held that [the death penalty] could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner”), and they raise important concerns that are worthy of this Court’s review.


Justice Sotomayor poses some very interesting questions. Do you think a judge should be able to override a jury’s recommendation? Do you think the political pressures of running for elected office could be a be factor in a judge’s determination of life without or death? If so, do you think it’s right for a judge to consider this?

Alabama’s capital sentencing scheme is safe for now. Check out Justice’s Sotomayor’s dissent Here.


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