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April 5, 2017

Alabama poised to ban judicial override of jury life recommendations in capital cases

As reported in this local article, the "law in Alabama is about to change so that juries will have the final say on whether to impose the death penalty or life in prison in capital murder cases." Here is more on this notable capital development:

The House of Representatives this afternoon passed a bill that would end the authority of judges to override jury recommendations in capital cases. Alabama is the only state that allows a judge to override a jury's recommendation when sentencing capital murder cases.

The bill, by Sen. Dick Brewbaker, R-Montgomery, passed the House on a vote of 78-19 and is now headed to Gov. Robert Bentley, who said he plans to sign it into law after it undergoes a standard legal review.

Rep. Chris England, who had a similar bill in the House, substituted Brewbaker's bill for his on the House floor today, allowing it to get final passage....

According to the Equal Justice Initiative. Alabama judges have overridden jury recommendations 112 times. In 101 of those cases, the judges gave a death sentence. "Having judicial override almost undermines the constitutional right to trial by a jury of your peers," England said.

England's bill, as introduced, would also have required the consent of all 12 jurors to give a death sentence. Current law requires at least 10 jurors. Brewbaker's bill leaves the threshold to impose the death penalty at 10 jurors.

England said there was not enough support to pass the bill with the requirement for a unanimous jury to impose the death penalty. He said ending judicial override was the main objective this year but he might propose the unanimous jury requirement again in the future. He said he still thinks the change is needed. "Why would it take a unanimous jury to convict but less than a unanimous jury to send someone to death?" England said....

England said the fact that Alabama had become the last state to allow judicial override helped build support for the bill this year. England also said there was some question about whether Alabama's death penalty law could be found unconstitutional in the future.

Ebony Howard, associate legal director for the Southern Poverty Law Center, issued a statement applauding the bill's passage. "Alabama should do everything it can to ensure that an innocent person is never executed," Howard said. "The bipartisan effort to pass a bill that would keep a judge from overriding a jury's vote in capital cases is a step in the right direction. As of today, Alabama is one step closer to joining every other state in our nation in prohibiting judicial override in the sentencing phase of death penalty cases."

The Supreme Court's decision in Hurst last year striking down, as violative of the Sixth Amendment, Florida's quirky approach to jury involvement in death sentencing surely paved the way for this notable change in Alabama procedure. Notably, in Florida, Hurst was ultimately interpreted to also preclude death sentencing based on only a 10-juror recommendation. Apparently legislators in Alabama feel more confident that capital cases can roll that way in the Yellowhammer State.

April 5, 2017 at 10:57 AM | Permalink


Would a Judge imposing a death sentence, over a jury's recommendation of life in prison (with or without parole) seem to violate the principles of Apprendi and its progeny?

Posted by: Jim Gormley | Apr 5, 2017 11:01:13 AM

If not Apprendi, Ring and Hurst would certainly suggest there are issues. The justification is the jury has to find the aggravating factors while the Judge still determined the weight of those factors compared to mitigating factors.

Posted by: Erik M | Apr 5, 2017 1:08:14 PM

Jim, no, not if the jury found beyond a reasonable doubt that at least one aggravating factor that elevates murder simpliciter to capital murder.

Erik, Ring and Hurst did not deviate from the fundamental holding in Apprendi that as far as the Sixth Amendment is concerned the only constitutional role the jury plays is to convict a defendant of a crime which exposes the defendant to the potential of death. As Scalia makes clear in his concurrence in Ring, after that finding is made, (which he thinks should be made in phase one), anything else can be left to the judge.


Posted by: bruce cunningham | Apr 5, 2017 4:43:34 PM

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