No capital sentencing procedure in the United States has come under more criticism as unreliable, unpredictable, and arbitrary than the unique Alabama practice of permitting elected trial judges to override jury verdicts of life and impose death sentences.
Of the 33 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 112 times. Although judges have authority to override life or death verdicts, in 90 percent of overrides elected judges have overruled jury verdicts of life to impose the death penalty.
Nearly 20 percent of the people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country. In 2009, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.
Override is now legal in only two states: Alabama and Delaware. Florida abolished judge override on March 7, 2016. No one in Delaware is on death row as a result of an override, and override often is used to overrule jury death verdicts and impose life - which rarely happens in Alabama.
Alabama’s trial and appellate court judges are elected. Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment, political pressure injects unfairness and arbitrariness into override decisions.
Override rates fluctuate wildly from year to year. The proportion of death sentences imposed by override often is elevated in election years. In 2008, 30 percent of new death sentences were imposed by judge override, compared to 7 percent in 1997, a non-election year. In some years, half of all death sentences imposed in Alabama have been the result of override.
There is evidence that elected judges override jury life verdicts in cases involving white victims much more frequently than in cases involving victims who are black. Seventy-five percent of all death sentences imposed by override involve white victims, even though less than 35 percent of all homicide victims in Alabama are white.
Some sentencing orders in cases where judges have overridden jury verdicts make reference to the race of the offender and reveal illegal bias and race-consciousness. In one case, the judge explained that he previously had sentenced three black defendants to death so he decided to override the jury’s life verdict for a white defendant to balance out his sentencing record.
Some judges in Montgomery and Mobile Counties persistently reject jury life verdicts to impose death. Two Mobile County judges, Braxton Kittrell and Ferrill McRae, have overruled 11 life verdicts to impose death. Former Montgomery County Judge Randall Thomas overrode five jury life verdicts to impose the death penalty.
There are considerably fewer obstacles to obtaining a jury verdict of death in Alabama because, unlike in most states with the death penalty, prosecutors in Alabama are not required to obtain a unanimous jury verdict; they can obtain a death verdict with only ten juror votes for death. Capital juries in Alabama already are very heavily skewed in favor of the death penalty because potential jurors who oppose capital punishment are excluded from jury service.
Supreme Court Justices Criticize Override in Alabama
On November 18, 2013, the United States Supreme Court denied a request to review the case of Mario Woodward, who was sentenced to death in Alabama even though his jury voted against imposing the death penalty. Justice Sotomayor, joined in part by Justice Breyer, dissented from the Court's decision to deny review, observing that Alabama "has become a clear outlier" when it comes to judicial override. Justice Sotomayor wrote that "Alabama now stands as the only one in which judges continue to override jury verdicts of life without parole."
Asking why Alabama judges alone continue to override jury verdicts, the dissenters assessed data from EJI's override report and other sources and concluded that the "only answer that is supported by empirical evidence is one that . . . 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."
That Alabama judges frequently override life verdicts even where the jury's decision was unanimous, they do so without providing a meaningful explanation, and factors including race and re-election prospects impact override decisions suggest that override in Alabama does not square with the Court's Eighth Amendment jurisprudence forbidding arbitrary infliction of capital punishment, the dissenters wrote.
Because much has changed since the Court approved Alabama's statute eighteen years ago, and "[t]oday, Alabama stands alone" in condemning prisoners to death despite the jury's decision that he should live, Justices Sotomayor and Breyer concluded that the Court should give it "a fresh look."
Supreme Court Rules Alabama Death Penalty Must Be Re-Examined
On May 2, 2016, the United States Supreme Court granted review, vacated the judgment, and remanded to the state court in the case of Bart Johnson, who challenged his death sentence after the Court struck down an identical death sentencing scheme in Hurst v. Florida.
On January 12, the Supreme Court held in Hurst v. Florida that Florida's capital sentencing scheme violates the Sixth Amendment's requirement that a jury, not a judge, must find each fact necessary to impose a sentence of death. 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."
Alabama's death penalty scheme has exactly the same defect that was declared unconstitutional in Hurst. Like in Florida, Alabama permits elected judges to overrule a jury's recommendation of a life sentence and instead impose the death penalty.
In Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury.
The Supreme Court initially denied review of Mr. Johnson's case, but he asked the Court to reconsider that decision after Hurst was decided. The Court entered an order granting Mr. Johnson's petition for review, vacating the state court's judgment upholding his death sentence, and remanding for reconsideration in light of Hurst.