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 111 times. Although judges have authority to override life or death verdicts, in 91 percent of overrides elected judges have overruled jury verdicts of life to impose the death penalty.
About 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 legal in only three states: Alabama, Delaware, and Florida. Florida and Delaware have strict standards for override. No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999. In Delaware and Florida, 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.