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July 11, 2011

New EJI report assails Alabama death sentences based on judicial override of jury life sentences

As detailed in this press release and in this new "Sidebar" piece by Adam Liptak in the New York Times, the Equal Justice Initiative has just released a new report on death sentencing in Alabama. The report, which is available here, is titled "The Death Penalty in Alabama: Judge Override."  Here is a summary of the report's coverage as provided by the start of the press release:

Allowing elected trial judges in Alabama to override jury verdicts of life in capital cases and impose the death penalty has resulted in some of the most arbitrary and unreliable death sentencing in the United States according to a new study by EJI.  A new report released today by EJI reveals that -- unlike in any other state -- elected Alabama judges overwhelmingly use their virtually unrestricted override power to impose death in cases where death-qualified Alabama juries have returned verdicts for life imprisonment without parole.

Of the 34 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 107 times.  Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Twenty-one percent of the 199 people currently on Alabama‚Äôs 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.  Last year, 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.

July 11, 2011 at 06:26 PM | Permalink

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Comments

When I suggest a return to mandatory sentencing guidelines, I very often hear, no, what we need is to allow judges maximum discretion.

Now I see that robust judicial sentencing discretion is a good thing, except when it isn't.

Posted by: Bill Otis | Jul 11, 2011 7:00:53 PM

Ohhh Bill there you go again distorting the facts. Alabama judges are elected federal judges are not. Huge difference in motivation for exercising discretion. How about comparing apples and apples rather than kumquats and shrimp.

Posted by: Steve Prof | Jul 11, 2011 8:10:50 PM

@Steve Prof
How is discretion because 'you feel like it' better than discretion because 'voters want it'? Neither seems especially distinct or beneficial?

Posted by: MikeinCT | Jul 11, 2011 9:03:26 PM

Steve Prof --

You assume that discretion exercised by judges who have accountability is inferior to that exercised by judges who have none.

You do not, however, offer evidence supporting that questionable assumption. My own experience is that people who have to answer for their decisions are at least as thoughtful in making them as those who aren't.

Posted by: Bill Otis | Jul 11, 2011 10:10:32 PM

personaly i think that legally they need to MAKE UP THIER MINDS! either the jury is going to decide or the JUDGE is.

Posted by: rodsmith | Jul 11, 2011 10:38:07 PM

Isn't an overide that increases the sentence a violation of Apprendi. Isn't the judge finding facts that jury did not to justify the sentence?

Posted by: ? | Jul 11, 2011 11:08:30 PM

Dear ?:

Do not argue with Bill. He DOES NOT respond to real questions.

He objects to the Nazi label, even though he is the Poster Boy for their beliefs.

Keep it up Bill. Your comments speak volumes about your REAL beliefs, and it is not to reduce criminal activities, reduce unwarranted gubermint expenditures on keeping us (Safe?) or defend the Constitution (which you belittle in many ways, (And NO, I will not respond to your Strawmen arguments).

You just like to torture people because you have a huge and unjustified EGO.

Posted by: albeed | Jul 11, 2011 11:27:08 PM

I wonder what happened to the reexamination clause of the Amendment VII!

Posted by: John Marshall | Jul 11, 2011 11:31:01 PM

@albeed
So when Bill asks you to justify your beliefs it's torture? Man, who knew blogging was so hard?

Posted by: MikeinCT | Jul 11, 2011 11:46:09 PM

? --

"Isn't an overide that increases the sentence a violation of Apprendi. Isn't the judge finding facts that jury did not to justify the sentence?"

In order to invalidate Alabama's override, the SCOTUS would have to directly overrule its 8-1 decison in Harris v. Alabama, 513 U.S. 504 (1995). The sole dissenter there, Justice Stevens, of course is no longer on the Court.

It is true that Harris preceeded Apprendi and Ring, but the plurality opinion in Apprendi (and the one upon which Ring is largely based) said point-blank that the decision did NOT affect judicial overrides in capital cases. And five Justices (Scalia, Kennedy, Thomas, Ginsburg and Beyer) who voted with the majority in Harris are still on the Court. Two others who were not there are Roberts and Alito.

I think you can do the math.

Posted by: Bill Otis | Jul 12, 2011 12:05:26 AM

albeed --

Occasionally I have attempted to talk with you as if you were rational, but, as is now evident, it has come to naught.

Have a nice day.

Posted by: Bill Otis | Jul 12, 2011 12:09:14 AM


MikeinCT --

"So when Bill asks you to justify your beliefs it's torture? Man, who knew blogging was so hard?"

It's hard for albeed because he's pretty much a prisoner in his own world, in which engineers have the answers and lawyers, especially those employed by the government (as I and numerous others on this blog once were) are sub-human.

The one thing you can count on is that he isn't about to produce an analysis of Harris v. Alabama in an effort to show that it was wrongly decided (by 8-1). Law -- even on a law-oriented blog -- is for fools. This is because cases are written by judges, judges are "gubermint" employees, and "gubermint" employees are conspirators to do some sort of evil, although I'm not sure what.

I'm persuaded he's actually a good person underneath -- a wounded idealist, I suspect -- but it's gotten to the point that it's impossible to get through to him.


Posted by: Bill Otis | Jul 12, 2011 12:26:51 AM

Bill Otis:

Yes, you are correct about Harris and Ring. However, the same Harris opinion also clearly states: "Harris does not challenge this legislative choice. And she objects to neither the vesting of sentencing authority in the judge nor the requirement that the advisory verdict be considered in the process. What she seeks instead is a constitutional mandate as to how that verdict should be considered; relying on Florida's standard, she suggests that the judge must give "great weight" to the jury's advice." Harris vs. Alabama, 513 US, 504, 511 (1995). This is the key paragraph for a future challenge. Unfortunately, the petitioner's counsel neglected to phrase the certiorrari question suitably. Sahme on them! Well, there may still be room for a Constitutional challenge! I certainly do hope so.

Posted by: John Marshall | Jul 12, 2011 12:30:23 AM

John Marshall --

One cannot read Harris in its entirety and come away with any conclusion other than the Court not only endorsed judicial overrides (as it had done in Spaziano and Proffitt), but endorsed the relatively more liberal standards for an override that exist in Alabama. Indeed, that seems to me to be the only coherent interpretation, given the very language you quote: "...relying on Florida's standard, [Harris] suggests that the judge must give 'great weight' to the jury's advice." (To which the Court answered, no, he does not).

There have been many years in which Alabama capital defendants have had the opportunity to seek re-consideration of Harris in light of later developments, but I am unaware of a single case, state or federal, in which a challenge of that sort has succeeded. If I'm missing something, I'll certainly stand to be corrected.

P.S. The NYT article by Adam Liptak does not so much as mention Harris, which seems to me to be shoddy journalism. One might plausibly think, as you do, that the case is subject to a possible future challenge, but to fail to mention it at all in an article about Alabama judicial overrides is astounding.

Posted by: Bill Otis | Jul 12, 2011 12:56:53 AM

Bill Otis:

To be quite honest with you, Harris opinion has always given me mixed signals. "I do not know," perhaps, should be my current answer. That is whay I raised the "reexamination clause" previously. I do realize that it "connotes" civil trials. However, it also speaks of "suits" at common law. It seems odd (to say the least) a judge could actually override a jury's finding that is less severe than his own later finding. Yes, Liptak must have neglected the Harris case. I cannot imagine how he could actually miss it. As you well know, even some attorney miss many favorable cases, because finding a case for your position is not always and easy task!

Posted by: John Marshall | Jul 12, 2011 1:17:49 AM

Liptak's article does mention Harris, although not by name. See five paragraphs from the bottom of the story.

Harris v. Alabama surely does pose a significant obstacle to any challenges to Alabama's death penalty system. However, note that Harris dealt only with an Eighth Amendment challenge-- not a Sixth Amendment challenge like those that prevailed in Apprendi and Ring. The Apprendi revolution has led SCOTUS to reconsider at least one of its prior capital decisions-- Ring itself, for example, overruled Walton v. Ariz., which had upheld Arizona's death penalty system. Its possible the Court might similarly reconsider Harris if faced with a direct Sixth Amendment challenge. Note also the recent Evans case out of the Southern District of Florida, holding Florida's death penalty system unconstitutional under Ring, even though that was a non-override case and Florida imposes greater limitations on judicial overrides than Alabama. It will be interesting to see how that opinion fares in the Eleventh Circuit-- which, incidentally, also covers Alabama.

Posted by: Anon | Jul 12, 2011 9:48:19 AM

A judge in Alabama cannot "override" a jury's verdict for the simple fact that the judge is the sentencer and not the jury. Regarding the Ring/Apprendi discussion, 95% (if not more) of Alabama's death sentences are based on convictions where the jury's verdict found the aggravating circumstance that exposes the capital murderer to a death sentence. Thus, no problem with Ring/Apprendi.

Posted by: justice seeker | Jul 12, 2011 10:04:35 AM

John Marshall and Anon --

As I noted, there have been many years in which Alabama capital defendants have had the opportunity to seek re-consideration of Harris in light of later developments, but I am unaware of a single case, state or federal, in which a challenge of that sort has succeeded. As Anon correctly notes, the recent Evans district court decision from Florida does not involve a challenge to overrides.

One can always say that it's "possilbe" a challenge of that sort will be mounted, and it's "interesting to speculate" how it would come out, but thoughts of that sort, while understandably tempting to the abolitionist side, are not law.

I also think justice seeker makes a worthwhile point.

If litigants want to change the law, file a case and win it. Until that happens, Harris remains the top dog. Mr. Liptak might have troubled himself to say so.

Posted by: Bill Otis | Jul 12, 2011 11:19:26 AM

yes bill we can do math!

50 STATES!

3 use judicial override

2 use it the complete opposit way that alabama does. ie. to override a death sentence imposed by the jury!

so out of 50 states ONLY ONE uses a judge to condem HUMANS to death in complete disregare of the JURY VERDICT!

yep WE CAN DO THE MATH!

Posted by: rodsmith | Jul 12, 2011 2:21:03 PM

rodsmith --

Indeed so. A minority of states have no DP, and an even smaller minority have judicial overrides.

To each his own. That's what federalism means.

Harris governs, and as you correctly imply, the math (in counting votes), strongly suggests that that's how it's going to stay.

Posted by: Bill Otis | Jul 12, 2011 2:57:52 PM

Bill Otis

after reading Harris again, I don't see anything in the opinion referencing the jury submitting in writing the aggravating and mitigating factors to the judge. Am I correct in assuming that Judge Martinez from the Evans case would find fault with Alabama's system also? The jury in Alabama seems to do less than their Florida counterparts that Martinez found fault with.

Have any state or federal judges in Alabama found conflict with Ring since 2002?

Posted by: DaveP | Jul 12, 2011 3:37:15 PM

DaveP,

The answer is no. The following two cases are the primary cases decided by the Alabama Supreme Court in determining that Ring did not invalidate Alabama's capital sentencing regime: Ex parte McNabb, 887 So.l 2d 998 (Ala. 2004) and Ex parte Waldrop, 859 So. 2d 1181 (Ala. 2004).

Posted by: justice seeker | Jul 12, 2011 4:05:01 PM

justice seeker

thanks.

Posted by: DaveP | Jul 12, 2011 4:13:27 PM

Bill, don't you think most elected state court judges who engage in judicial override just might be influenced by public opinion in favor of the death penalty rather than the merits that the jury rejected?

Posted by: Steve Prof | Jul 12, 2011 7:52:58 PM

Steve Prof --

"Bill, don't you think most elected state court judges who engage in judicial override just might be influenced by public opinion in favor of the death penalty rather than the merits that the jury rejected?"

Sure it's possible. It's also possible that, in any given instance, they could be swayed toward leniency in the case of a locally sympathetic defendant (like the pharmacist who kills a would-be burglar, or a wife with a known bully for a husband).

It's also possible that a jury (or a judge) could be swayed toward leniency by a tearful plea from the killer's mother, even though the merits of the case would fully warrant death.

In short, judges, like juries, can be influenced by sentiment, but it's not so easy to predict a priori how that sentiment will play out. Judges could be influenced by overall public support for the DP -- but so could juries.

Posted by: Bill Otis | Jul 13, 2011 10:22:00 AM

Luckily, it is easier to decipher sentiments/motivations a posteriori. Given that 92 percent of overrides are in the death direction, I think reasonable people can draw their own conclusions on that.

Bill struck more quickly than usual in diverting this thread into a shouting match with his provocateur act (30 minutes after the post). Wonder if it's because he's afraid reasonable folks -- even those who are generally in favor of capital punishment -- would judge Alabama's outlier scheme as a mistake and a step too far in terms of weighting the scales toward death.

Posted by: Anon | Jul 13, 2011 10:47:10 AM

Anon --

Wonder away. If you ever have an actual argument you want to make, feel free. You can start by taking on O'Connor's 8-1 ruling in favor of Alabama.

P.S. It's hilarious that a person who doesn't so much as sign his name wants to give a pious scolding to someone who does.

Posted by: Bill Otis | Jul 13, 2011 1:53:50 PM

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