Despite Jury Verdicts for Life, People in Alabama Still Face Execution

Alabama lawmakers recognized nearly a decade ago that Alabama's unique practice of allowing an elected trial judge to reject a jury verdict of life and impose the death penalty was wrong.

The state legislature abolished judicial override in 2017. When Governor Kay Ivey signed the bill into law, the "message was unambiguous: sentencing decisions in death penalty cases belong to juries, not to judges," according to former Alabama Supreme Court Chief Justice Drayton Nabers Jr.

Roy S. Moore, another former Chief Justice of the Alabama Supreme Court pointed out that it is wrong for people to remain on death row even though their juries sentenced them to life imprisonment without parole. "If it was wrong in 2017 for a trial judge to overturn a jury recommendation of life without parole," Justice Moore wrote, "it is wrong to condemn…individuals who were denied that right prior to 2017."

Even though the state has abolished the practice of judicial override and recognized that jury verdicts should be respected, there are still 25 people facing execution in Alabama whose juries voted for life, including four whose juries unanimously rejected the death penalty as punishment.

History of Judicial Override

Alabama adopted judicial override as a response to the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which struck down capital punishment as unconstitutional.

After decades of death sentences imposed across the country with shocking bias and arbitrariness, the Court in Furman held that the death penalty in America too closely resembled "self-help, vigilante justice, and lynch law."

Southern lawmakers immediately proposed new death penalty statutes. To address the Court's concerns about bias and arbitrariness, Georgia's new scheme included a separate sentencing phase where jurors would be instructed to consider only a limited number of statutorily-defined "aggravating circumstances" (circumstances that supported a sentence of death).

The death penalty could be imposed only where the jury unanimously agreed on an aggravating circumstance beyond a reasonable doubt and then elected to impose death. Unless the defendant waived his right to a jury sentencing verdict, the jury's recommended sentence was binding on the trial judge.

After the Supreme Court upheld that statute in its 1976 decision in Gregg v. Georgia, most death penalty states followed Georgia's lead.

But Florida went a step further. It reasoned that the only way to prevent juries from imposing arbitrary, discriminatory, and unfair death sentences was to take the ultimate sentencing decision out of jurors' hands.

Unlike Georgia and nearly every other state, Florida's law provided that the jury's sentencing verdict could be overruled by the trial judge through a maneuver called judicial override.

Florida required judges to give "great weight" to the jury's recommendation. And it put a thumb on the scale in favor of life by preventing a judge from overriding a jury's life verdict unless "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ."

Alabama followed Florida's scheme.^{1 Ex parte Harrell, 470 So. 2d 1309, 1317 (Ala. 1985) ("Alabama's procedure permitting judicial override is almost identical to the scheme used in Florida.").} Its new statute required a separate sentencing phase where the jury could consider certain statutory factors before issuing a sentencing recommendation. A death penalty recommendation would require 10 votes, but only seven jurors were needed to recommend life imprisonment without parole.

But that's where the similarities ended. Unlike Florida, where judges were required to give jury recommendations "great weight," Alabama's statute merely required the judge to "consider" the jury's advisory verdict. As then-Supreme Court Justice John Paul Stevens reasoned in Harris v. Alabama:

Alabama's capital sentencing statute is unique. In Alabama, unlike any other State in the union, the trial judge has unbridled discretion to sentence the defendant to death-even though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence.

Alabama was an outlier even among the four override states:^{2 Delaware adopted an override statute modeled after Florida's scheme, including a "great weight" standard of deference to the jury's recommendation. Delaware judges generally used judicial override as intended-to counteract biased or unfair jury verdicts for death by imposing life sentences. Indiana permitted override after Furman but made the jury's sentencing recommendation binding for defendants sentenced after June 30, 2002. Ind. Code Ann. § 35-50-2-9 (West 2007).} the only one where trial judges are elected in partisan elections, the only one without strict statutory standards for overrides from life to death, and consequently, the only one where judges routinely overrode jury verdicts of life to impose the death penalty.

Override in Alabama

Alabama's attempt to use judicial override to prevent the imposition of arbitrary and unfair death sentences failed.

In practice, judicial override created more unfairness and arbitrariness because it allowed elected judges virtually unfettered discretion to impose death.

And as the politics of fear and anger took hold, political incentives at every level from county prosecutors to statewide officeholders fed a skyrocketing death sentencing rate in the state.

Judges facing re-election campaigns every six years faced tremendous pressure to prove themselves "tough on crime" by overriding life recommendations. As Justice Stevens recognized in Harris:

[P]resent-day capital judges may be "too responsive" [to] a political climate in which judges who covet higher office-or who merely wish to remain judges-must constantly profess their fealty to the death penalty.

Studies showed that elections directly influenced decision-making in death penalty cases. In 2008, an election year, 30% of the death sentences imposed in Alabama were the result of judge override.

Judge override became a significant contributor to Alabama's high death sentencing rate-101 people were sentenced to death in Alabama by judges who overrode jury verdicts for life.

EJI found that death sentences imposed by judicial override were characterized by arbitrariness and error-shaped by geography, race, and the politics of elected judges and prosecutors.

To a troubling degree, whether a person was sentenced to death after a jury verdict for life turned on what county they were sentenced in, which judge was assigned, and the race of the victim.

And decisions made by elected judges were highly unreliable-more than a third of override cases have been reversed because of error.

The Importance of Juries

Avoiding arbitrary and unfair sentences based on politics and error is one of the main reasons why we have juries in the U.S.

Unlike judges appointed by government officials or elected after expensive political campaigns, jurors are community members with diverse experiences and backgrounds who better reflect the "conscience of the community."^{3 Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) ("[A] jury that must choose between life imprisonment and capital punishment can do little more-and must do nothing less-than express the conscience of the community on the ultimate question of life or death.").}

The Constitution guarantees the right to be tried by a jury of one's peers as a safeguard against abuses of power by state and federal governments. In 1774, future president John Adams wrote, "Representative government and trial by jury are the heart and lungs of liberty."^{4 John Adams, The Revolutionary Writings of John Adams, ed. C. Bradley Thompson (Liberty Fund, 2000), 55.}

The citizen jury has long been a bedrock of America's constitutional system, lauded by founding fathers and Supreme Court justices alike.

"As a former judge and Chief Justice, I believe that the right to trial by jury is one of our most valuable rights, and indeed a palladium of liberty and free government," former Alabama Supreme Court Chief Justice Roy Moore wrote in a recent op-ed. "I support the death penalty and will continue to do so," he wrote, "but only when given by a jury, which should have the last word."

Juries are not only "consistent with our democratic heritage," the Supreme Court has recognized, but are "also critical to public confidence in the fairness of the criminal justice system."

"Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: They express contempt for that judgment," Justice Stevens reasoned in Harris. "[I]ndeed, government-sanctioned executions unsupported by judgments of a fair cross section of the citizenry may undermine respect for the value of human life itself."

Since 1976, the State of Alabama has executed 12 people whose juries rejected the death penalty.

Incomplete Reform

In 2016, the U.S. Supreme Court struck down Florida's override statute, holding in Hurst v. Florida that the state's sentencing scheme was unconstitutional because it did not require the jury to make the critical findings necessary to impose the death penalty.

"The Sixth Amendment protects a defendant's right to an impartial jury," the Court explained. That means that a jury, not a judge, must find each fact necessary to impose a death sentence. Because a Florida jury's recommendation is only advisory and may be overruled by the trial judge, who alone makes the findings necessary to impose death, the "jury's mere recommendation is not enough."

Finding that its override statute had the same constitutional defects identified in Hurst, the Delaware Supreme Court struck down its death penalty statute on August 2, 2016, effectively abolishing capital punishment in the state. It also ruled that Hurst applied retroactively and, because everyone on death row was sentenced under an unconstitutional statute, the court effectively invalidated all existing death sentences.

Lawmakers in Alabama recognized that Hurst applied in their state as well. State Sen. Dick Brewbaker (R-Montgomery) sponsored the bill that ended override in Alabama because it "flies in the face" of our democracy to allow a judge to overrule the jury's decision. "[W]e pick a jury of the community and they decide guilt, innocence, and punishment," he said in 2017. "You are entitled to a trial of a jury of your peers, and that ought to apply to sentencing too."

The legislature passed a bill ending judicial override on April 4, 2017, and Gov. Kay Ivey signed it into law on April 11, 2017-her first full day in office.

The reasons for ending judicial override apply with equal force to people who were sentenced to death by judges despite jury life verdicts before 2017.

Yet state prosecutors continue to argue that the new law does not affect these earlier cases.

"And so approximately thirty people remain on Alabama's death row today-sentenced under a system the state itself has repudiated as unjust," Justice Nabers wrote.

"[W]hen a state concludes that a sentencing practice was unjust-unjust enough to abolish by statute-it ought to reckon with the sentences that practice produced," he continued. "To say that the system was wrong going forward but that its past results must stand is not a principled position. It is an administrative convenience."

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