The New Yorker magazine’s November 17, 2014, issue features an expose about the unreliability, political calculations, and racial bias involved in allowing Alabama judges to override jury verdicts of life and impose the death penalty.
Alabama is the only state in the country where judges, who are elected in partisan races, routinely override jury verdicts of life to impose capital punishment. As Paige Williams reports for The New Yorker, Alabama refused to adopt statutory standards for override and instead “constructed a legal ‘façade’ that ‘allows the judge to operate without adequate checks and balances.'”
Florida and Delaware also have override, but judges there use it very rarely; when they do, it is almost always to override death sentences to impose life. No one in Delaware is on death row as a result of override, and it has been fifteen years since a Florida judge has exercised override to impose the death penalty. In contrast, Alabama’s judges have condemned someone to death through override at least once in thirty-one of the past thirty-two years.
Nearly seventy Alabama judges have single-handedly ordered an inmate’s execution, and collectively they have done so more than a hundred times. Thirty-six of the nearly two hundred men and women on death row are there because a judge overrode a jury verdict of life without parole.
The United States Supreme Court upheld the override statute in 1995. Justice John Paul Stevens dissented, writing that override allows a prosecutor “who loses before the jury” to get “a second, fresh opportunity to secure a death sentence,” in some cases by presenting “the judge with exactly the same evidence and arguments that the jury rejected.” He wrote, “A scheme that we assumed would ‘provide capital defendants with more, rather than less, judicial protection’ has perversely developed into a procedure” in which a “defendant’s life is twice put in jeopardy.”
Last year, Justices Sonia Sotomayor and Stephen Breyer dissented from the Court’s decision to deny review in another Alabama override case. Williams writes: “Sotomayor, pointing out that the prevalence of override in Alabama may be due to politics, wrote that giving unilateral death-sentence power to judges who are seated through partisan elections ‘casts a cloud of illegitimacy over the criminal justice system.’ Noting that the Court had not examined Alabama’s death scheme in eighteen years, she argued that it was time for ‘a fresh look.'”
The politics of override are not confined to trial judges who exercise the power to overturn jury sentences; they also influence Alabama’s appellate judges. Douglas Johnstone, the retired Alabama Supreme Court justice, told Williams that judges on the Alabama Court of Criminal Appeals tend to “know, or think, that reversing a criminal case is a way to throw away votes.” He said, “Affirming a verdict is a way to stay down in the foxhole and not get your head shot off.”
Justice Sandra Day O’Connor, in a speech last year, said that electing judges fosters a public image of courtrooms governed by “politicians in robes.” Even judges who have exercised override have acknowledged the problem of outside pressure. Politics “has to have some impact, especially in high-profile cases,” Tommy Nail, a circuit judge in Birmingham, once said. “Let’s face it, we’re human beings.”