In Alabama, which has the highest death penalty rate per capita in the nation, legislators have taken a step to reduce the arbitrary application of capital punishment in the state.
On Wednesday, the Alabama House Judiciary Committee passed a bill that wouldstop judges from having the final say in sentencing for capital cases in the state, and instead require a unanimous jury to hand down a death sentence. Usually, a jury decides a defendant’s fate in capital cases, but Alabama is the only state that still has “judicial override,” in which a judge can overrule a jury’s recommendation for a life or death sentence. A similar bill, which includes no language to require a unanimous jury, is concurrently making its way through the Alabama Senate.
Ironically enough, when judicial override originated in Florida in the 1970s, it was intended as a way to prevent juries from over-sentencing the death penalty. After the Supreme Court struck down the death penalty in 1972 for its arbitrary and discriminatory application, Florida came up with the judicial override scheme, in which juries recommend a sentence, but judges could override that decision with sufficient justification. The Supreme Court’s concerns were assuaged, and capital punishment was reinstituted in 1976. Alabama adopted a similar judge override statute in 1981, and it’s the only state that still uses the practice, after Delaware and Florida eliminated their override systems last year.
Pacific Standard spoke with Alicia D’Addario, a senior attorney at the Equal Justice Initiative, an Alabama-based legal non-profit, about the controversy and constitutionality of the practice.
How do you explain judicial override to someone not familiar with the legal system?
Judge override is a practice where in death penalty cases a judge can override what the jury decided about what the appropriate penalty is in a case. In death penalty cases, jurors are called for jury service, they’re questioned about their views on the death penalty, and people only make it on the jury if they say “I support the death penalty, I can impose the death penalty.” Then in Alabama what happens is, there’s a trial, there’s evidence presented about both guilt and about what the appropriate sentence should be, and then the jurors deliberate and come back with a verdict. Sometimes it’s a verdict for death, sometimes it’s a verdict for life without parole. But the judge in Alabama can override that determination and impose the death penalty instead. What we’ve seen in Alabama is that judges almost never override a jury verdict for death and impose life, but they do routinely override jury verdicts for life and impose the death penalty. We think that’s partly because our judges are elected, and so are under a lot of political pressure to appear tough on crime.
How does this compare to how the practice has been used in other states?
In some other states that have had the practice in the past, it has been intended more as a check on the jury to guard against passions being inflamed or a case where a judge who sees a lot of cases knows that this is not one of those really extreme cases that calls for the death penalty.
At this point Alabama is the only state that permits judge override. Florida and Delaware had it until recently, but both of those states even before they got rid of it were not using the practice the way that Alabama was. It was very restricted, it was very limited, it was much more likely that you would see judges overriding jury verdicts for death and imposing life. And judges could really only override a jury verdict under extreme circumstances, where no reasonable person could agree with the jury [decision]. It was very rarely used in either of those states. There was nobody on death row in Delaware as a result of judge override and there were only a handful of people in Florida, and no one had actually gotten a death sentence by override in Florida since 1999. Now both of those states have decided that that practice does not comply with the United States constitution. We think the same is true in Alabama, but the Alabama courts have not yet recognized that.
In Alabama it has always been the case that most overrides are from life to death and that judges use that power as something they campaign on in political campaigns, and use that to appear tough on crime.
How many of Alabama’s death row inmates were put there by judges?
Nearly 20 percent of the people on Alabama’s death row were sentenced through judge override—including the person in Alabama who was most recently executed, Ronald Smith.
Why is judge override such a controversial practice?
I think that it is questionable whether it’s constitutional because under our constitution you do have a right to a jury trial, and the jury is really central to our system of criminal justice. We require for people to be found guilty of a crime, we require that that be done by a jury of their peers, and when you’re making the ultimate decision between whether someone should live or die, we think that also should be something that is decided by a jury.
One of the things that’s happened is that it is a political tool, and that’s because judges are elected. We see more judicial overrides in election years. We also see that the vast majority of judge overrides are in cases involving white victims. So there’s this significant racial disparity in the way that it’s exercised; 75 percent of all death sentences imposed by judge override involve white victims, even though less than 35 percent of homicide victims in Alabama are white. There are also problems geographically, that some judges in some counties are just much more likely to impose the death penalty by judge override than others. So that introduces another level of arbitrariness.
Support for the death penalty nationwide is falling, but is there still strong public support for capital punishment in Alabama?
I think that Alabama has, in some ways, bucked the national trend and has continued to have fairly high rates of death sentencing partly because of judge override. We do see that, although there’s a fair amount of public support for the death penalty in Alabama, when even those jurors who support the death penalty—and, like I said before, those are the only people allowed to serve on juries in these cases—when those people hear the mitigating circumstances about someone’s life, they are imposing the death penalty less often. For example, we had a case recently where an Iraq War veteran who had been through significant trauma was convicted of capital murder, but the jury voted—because of that significant mitigation—unanimously for life without parole. But the judge overrode that and imposed the death penalty. I think that when jurors are allowed to make those case-specific determinations that they are moving away from the death penalty, but judge override can prevent them from doing that.
Should the practice of judge override be done away with, or are there cases where it would be useful but with more safeguards or restrictions?
We think that it should be done away with. We certainly would support a system where there was a possibility to override from death to life, as that sort of safeguard against an overly emotional jury or something like that. But we think that the practice of allowing judges to override a life verdict from a jury and then impose a death penalty is unconstitutional and absolutely should be eliminated.
This interview has been edited for length and clarity.