Alabama Abolished Judge Override, But Still Seeks to Execute People Who Received Life Verdicts


On April 11, 2017, Alabama became the last state in the U.S. to abolish judge override. But the State still plans to execute people whose juries voted for a life sentence.

Since 1976, Alabama judges have routinely overridden jury verdicts of life to impose the death penalty—and they continued to do so long after the handful of other states that permitted override ceased overriding jury verdicts of life.

“Alabama has become a clear outlier,” Supreme Court Justice Sonia Sotomayor, joined by Justice Stephen Breyer, wrote in 2013. The state “now stands as the only one in which judges continue to override jury verdicts of life without parole.”

The justices pointed out that Alabama judges frequently were overriding life verdicts even where the jury’s decision was unanimous, they were doing so without providing a meaningful explanation, and factors including race and re-election prospects were impacting override decisions.

Thirty people who received life verdicts from their juries are still on death row in Alabama despite evidence that override led to arbitrary, unreliable, and unconstitutional death sentences. That’s nearly 20% of the people condemned to death in the state.

One of those is Kenny Smith, who was just 22 years old when he was charged with capital murder in the 1988 killing of a woman whose husband was involved in an affair, had incurred substantial debts, and had taken out a large insurance policy on her. A week after the murder, when the investigation started to focus on the husband as a suspect, he committed suicide.

Prosecutors argued that Mr. Smith, along with two other men, was paid by the husband to kill his wife. Mr. Smith was convicted of capital murder for hire.

At the sentencing hearing, the jury found one aggravating circumstance (that it was a murder for hire) and several mitigating circumstances, including his young age, that he had no significant criminal history, he appeared to be remorseful for what he had done, his good conduct in jail and in counseling family members and others, and that he was neglected and deprived as a young child.

Jurors weighed the evidence and determined that the mitigating factors outweighed the single aggravator. The jury voted 11-1 to impose life imprisonment without parole. The sentencing judge, however, rejected their nearly unanimous verdict and condemned Mr. Smith to death.

Alabama 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.”

Override “actually undermines our [jury] system, as the Constitution guarantees your right to a jury and a trial by your peers,” the bill’s sponsor in the House, Rep. Chris England (D-Tuscaloosa), said. He lauded the House’s passage of the abolition bill, saying, “[T]he Constitution intends [the death penalty] to be in the hands of juries.”

These arguments against override apply with equal force to people who were sentenced to death by judges despite jury life verdicts before 2017.

“Justice and fairness dictate that no one should be executed if they were sentenced under rules and procedures, like judicial override, that subsequently are declared unconstitutional or repudiated by the jurisdiction in which they were tried,” legal expert Austin Sarat wrote last month.

But now, more than five years after it abolished override, Alabama is planning to execute Mr. Smith on November 17 even though a jury of his peers rejected the death penalty in his case.

Mr. Smith is the first person sentenced to death through a judicial override whom the State has scheduled for execution since override was abolished.