When Justice Potter Stewart provided a critical vote in the Supreme Court’s decision to strike down capital punishment in 1972, he wrote that the death penalty, as then administered, was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Four years later, Stewart provided a critical vote in reinstating capital punishment as long as courts held separate penalty hearings and defendants could present any possible evidence of “mitigating factors” for juries to consider.
Despite the implementation of those Supreme Court-ordered reforms, critics say the death penalty is still, 30 years later, as arbitrary as a lightning strike. But in one state, Alabama, one source of the arbitrariness is plainly visible: politically elected judges who condemn defendants to death after juries have recommended life prison sentences instead.
Only three states permit judges to override jury sentencing decisions not to impose the death penalty in capital cases at all Delaware and Florida are the others but only in Alabama are judges routinely exercising that power now. Of the 199 inmates now on Alabama’s death row, 42 are there because judges imposed death sentences in the face of jurors’ decisions to spare the defendants’ lives. No judge in Delaware or Florida has done so since 1999; a fourth state that once permitted death sentences by judicial overrides, Indiana, changed its law and took that power away from judges.
The Supreme Court upheld Alabama’s law in a 1995 decision, Harris v. Alabama. Justice Sonia Sotomayor drew attention to the practice last month [Nov. 18] in an opinion calling on the court to reconsider that decision. Along with Justice Stephen G. Breyer, Sotomayor dissented when the court declined to take up a new case, Woodward v. Alabama, challenging the practice.
As Sotomayor explained, Alabama is now “a clear outlier” among the 32 states that allow the death penalty. Juries have a role in 31 of the state death-penalty schemes (all but Montana), and they have a final say in all but three.
Florida had been the leader in judicial override death sentences in the 1980s with 89 in the decade, but the number dwindled to 26 in the 1990s until the practice disappeared after 1999. Indiana never had more than one such case per year; Delaware has had only such case ever, and that judicially imposed death sentence was eventually reduced to life imprisonment. But the practice continues in Alabama: 30 judicial override death sentences in the 1980s, 44 in the ’90s, and 26 since 2000, an average of two a year.
Sotomayor believes the reason for Alabama judges’ death-dealing inclinations is simple: politics. Judges are elected in partisan races in Alabama; Florida holds nonpartisan judicial elections, while judges are appointed by the governor in Delaware. Alabama judges, Sotomayor writes, “appear to have succumbed to electoral pressures.” She noted that one Alabama judge, who has overridden jury verdicts to impose the death penalty six times, ran a campaign advertisement naming some of the defendants he had had sentenced to death; in at least one of the cases, the judge overrode the jury’s contrary judgment.
Sotomayor relied heavily in her opinion on a report by the Equal Justice Initiative, the Montgomery, Ala.-based public interest law firm. Its 32-page report, “The Death Penalty in Alabama: Judge Override,” made the point more forcefully, in part by citing statistics to indicate that death sentences by judicial overrides in Alabama peak in election years. “Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment,” the report states, “political pressure injects unfairness and arbitrariness into override decisions.”
The report indicates that political pressure does not run the other way. In only nine cases have Alabama judges overridden jury recommendations to impose the death penalty in favor of a life sentence instead. And Alabama judges do not impose death sentences only after closely divided jury votes; in more than a dozen cases, judges sentenced defendants to death after jurors voted unanimously for life sentences.
In her opinion, Sotomayor also argued that the judicial override practice in Alabama runs afoul of the Supreme Court’s line of precedents the so-called Apprendi cases requiring jury instead of judicial fact-finding to raise a defendant’s sentence above the statutory minimum. (Breyer, a dissenter from those decisions, did not join that part of Sotomayor’s opinion.) As Sotomayor detailed, the judge in the case under review sentenced Mario Woodward to death for the killing of a Montgomery police officer after rejecting the jury’s 8-4 finding of mitigating factors based on Woodward’s abused childhood and his good relationship with his five children. Under Apprendi, Sotomayor wrote, “a sentencing scheme that permits such a result is constitutionally suspect.”
Justices use dissents from cert denials in part to highlight issues for possible later consideration. It takes only four votes to grant certiorari, so one question about Woodward’s case is why the other liberal justices Ruth Bader Ginsburg and Elena Kagan failed to join Sotomayor’s opinion. Perhaps they thought the case a poor vehicle to raise the issue: the mitigating factors in Woodward’s favor do appear somewhat flimsy. Or perhaps they feared that the liberal bloc could not persuade Justice Anthony M. Kennedy to provide a fifth vote against Alabama’s judicial override practice, at least not now. Still, Sotomayor laid out a strong case that Alabama’s lightning-strike death penalty system deserves “a fresh look.”