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.
Alabama is the only state where judges have routinely overridden 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 91 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 had the highest per capita death sentencing rate in the country.
Florida abolished judge override in 2016 after the United States Supreme Court struck down the state's capital sentencing statute as unconstitutional in Hurst v. Florida. No death sentences had been imposed by override in Florida since 1999. Until 2016, when the Delaware Supreme Court ruled the state's death penalty statute unconstitutional, Delaware permitted judge override, although it had strict standards for override and no one in Delaware is on death row as a result of an override. In Delaware and Florida, override often has been used to overrule jury death verdicts and impose life, which has rarely happened in Alabama.
On April 4, 2017, the Alabama legislature passed a bill that abolishes judge override in future cases. Alabama's Senate passed SB16 earlier in the 2017 session by a vote of 30-1. On April 4, the House amended HB32, substituted it for the Senate bill, and passed it with 78 votes in favor, 19 opposed, and 2 abstentions. On April 11, 2017, Alabama Governor Kay Ivey signed the bill into law.
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. 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 fewer 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 have rejected 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 10 juror votes for death. Capital juries in Alabama are very heavily skewed in favor of the death penalty because potential jurors who oppose capital punishment are excluded from jury service.
Florida now joins the majority of states that require unanimous juries to impose death sentences.
Alabama is the only state that allows a judge to impose a death sentence when the jury returns a verdict for life.
Alabama is now the only state to allow the death penalty without a jury finding that aggravating factors outweigh the mitigating circumstances.