Administration of justice or the preservation of political office: the unconstitutionality of judicial override in Alabama death penalty cases.

• Author: Tartt, Clayton

INTRODUCTION

Perhaps no other area of law generates as much debate and research as the death penalty. Death penalty research covers a wide range of topics, and seeks to understand the moral, legal, political, philosophical, and psychological underpinnings of the ultimate punishment. While this research has been extensive, it has not been exhaustive. One topic in particular deserves further attention: the judicial override in Alabama.

Judicial override is the process by which a judge "overrides" a jury's recommended sentence. While thirty-five states have death penalty statutes, (1) only three states allow for judicial override. (2) Alabama, however, is the only state in the country that combines the partisan election of judges with judicial override. Further, Alabama is unique because the "trial judge has unbridled discretion to sentence the defendant to death," over a jury's recommendation of a life sentence, due to the "complete absence of standards to guide a judge's consideration of the jury's verdict." (3) The unique combination of politics and deficient judicial standards for the override process in Alabama demands further analysis.

Even though the United States Supreme Court has failed to recognize a constitutional right to a jury sentence in capital cases, (34) the right may still exist. This paper will attempt to show that the practice of judicial override in the state of Alabama is unconstitutional. Judicial override and partisan judicial elections cannot coexist in a fair justice system because a judge seeking political office has a vested interest in imposing heavier sentences. Section I sets out to define the process of judicial override in Alabama. Section II highlights the extreme political nature of the Alabama judiciary. Section III provides a summary of relevant Supreme Court decisions. Section IV examines the arguments in favor of judicial override. Section V attacks the arguments of those in favor of Alabama's flawed system, and challenges that system as unconstitutional. Section VI offers suggestions for a solution.

There are many troubling features of judicial override in Alabama. Perhaps the most troubling characteristic is that a judge, quite literally, holds a life in his hands. Because one person may determine life or death, there is substantial room for error: The case of Walter McMillian, who was tried and convicted of murder, illustrates how close the override has come to taking an innocent life. (6) The jury convicted McMillian due largely to the state's eyewitness testimony. (7) In contrast, the jury did not believe McMillian's alibi witnesses. (8) In fact, the jury disregarded multiple ac counts of defense witnesses providing a solid alibi for McMillian. (9) Despite the jury's certainty regarding these witnesses, it still recommended McMillian serve life in prison rather than receive a death sentence. The judge, however, unilaterally overrode the jury's recommendation and imposed the death sentence. (10) Because of Alabama's judicial override procedure, the judge was able to sentence McMillian to death over the jury's recommended sentence. (11) McMillian, however, was exonerated of this crime because he was innocent. (12) The judge's attempt to be "tough on crime" nearly cost an innocent man his life. Because of the possibility that an innocent person may be executed by the state, the decision to condemn an individual to death should be left to an impartial jury. This decision should be taken out of the hands of judges who might have a greater interest in securing their office through a "tough on crime" stance, rather than securing justice.

1. THE PROCESS: HOW JUDICIAL OVERRIDE WORKS IN ALABAMA

   Alabama enacted its current death penalty statute in 1981. (13) This statute has undergone little transformation in subsequent decades. (14) In order to be eligible for the death sentence in Alabama, a unanimous jury must find beyond a reasonable doubt that the defendant is guilty of "capital" murder. (15) Once a defendant has been convicted of a capital offense, "the trial court shall conduct a separate sentencing heating to determine whether the defendant shall be sentenced to life imprisonment without parole or to death." (16) The statute gives the defendant the right to have his sentencing heating conducted in front of a jury. (17) At the sentencing hearing, the state and the defendant may offer evidence on any matters relating to statutorily prescribed aggravating or mitigating circumstances. (18) At the close of the sentencing hearing, the jury deliberates and recommends a sentence. (19)

   The jury may recommend a death sentence only if at least ten jurors support such a recommendation. (20) After the jury recommends its sentence, the statute requires that the trial judge consider the same factors as the jury and decide whether or not to adopt the jury's recommendation. (21) The practical effect of the statute's language is that jury sentences are merely advisory in nature. In order to condemn a defendant to death, the jury must find that there was at least one statutorily prescribed aggravating circumstance present during the commission of the crime. (22) In addition, the aggravating circumstances must outweigh the mitigating circumstances offered by the defense. (23) The jury's sentence recommendation must be considered, but it is not binding upon the court. (24) The judge does not have to afford any deference to the jury's recommendation. Consequently, Alabama judges have the power to completely ignore a jury's recommendation, and then impose a death sentence.

   One would think that judges would reserve the process of judicial override to the rare cases where it is clear that the jury was incorrect. However, judges use the override to impose the death sentence substantially more often than they use it in favor of a life sentence. (25) In fact, the main argument made by advocates of judicial override is that the process is supposed to insulate defendants from prejudiced juries by "provid[ing] capital defendants with more, rather than less, judicial protection." (26) Sadly, no law in Alabama protects capital defendants from prejudiced or overzealous judges. Alabama's elected judges have used the override extensively, perhaps in an attempt to appear tough on crime. (27) Because of the override provision, the state of Alabama sentences more people to death, per capita, than any other state in the country. (28) In fact, from 2001-2006, Alabama led the nation in imposing new death sentences. (29) Judicial override played a pivotal role in exalting Alabama to this loathsome status by accounting for 30% of the death sentences over that period. (30)

   A study conducted last year by the Equal Justice Initiative showed that since the Supreme Court reinstated the death penalty in 1976, Alabama judges have overridden 84 jury recommendations for life. (31) The study pointed out that during that same period, judges were much less likely to override a death sentence and grant a life sentence. Furthermore, "[o]f the 198 prisoners currently on death row in Alabama, 20% were condemned to death by a judge who threw out the jury's decision that death was not the appropriate punishment." (32) It is painfully apparent from these figures that use of judicial override in Alabama is far from impartial. In fact, the fundamental purpose of the override--protecting criminal defendants from overzealous juries--is undermined by the fact that some judges may use the device for political gain.

2. POLITICAL JUSTICE: How TO BECOME AND STAY A JUDGE IN ALABAMA

   The extreme political nature of the Alabama judiciary is readily apparent. All judges in the state of Alabama are elected through partisan elections. (33) In the Alabama Supreme Court election in November of 2008, candidates spent over five million dollars campaigning for a single seat on the state's highest court. (34) According to the 2008-2009 President of the American Bar Association, this was the most money ever spent on a state supreme court seat in the history of the nation. (35) Alabama is one of seven states that seat members of its judiciary through partisan elections. (36) As previously noted, however, it is the only state to have both partisan judicial elections and the judicial override.

   Partisan judicial elections raise numerous concerns. (37) The major concern is that partisan elections pit two contrasting American values against one another: democracy and judicial independence. (38) Partisan elections, or the appearance of politically motivated justice, can foster fear that judges would rather further their political careers than properly administer justice. Some commentators have likened this hypothesis with electoral-incentive theory, which presupposes that a political candidate's primary goal is to stay in office making reelection his chief concern. (39) The logical extension of the electoral-incentive theory is that judges chosen through partisan elections will act like politicians, rather than judges.

   In Alabama, politically-minded judges are particularly disturbing because the electorate clearly has a "tough on crime" mentality. A recent survey in The Birmingham News shows that over 70% of Alabamians support the death penalty. (40) William Bowen, a former judge on the Alabama Court of Criminal Appeals, has stated that the Alabama electorate would never elect a judge that was against the death penalty. (41) He also noted that an elected judge must either rule in a way that reflects the public's bias for the death penalty or risk being ousted from office. (42) "Very few judges," Mr. Bowen asserts, "can withstand that type of pressure." (43) In Alabama, then, appearing "tough on crime" becomes a political necessity. If being tough on crime is a political necessity, then how can a judge sentencing someone in a death penalty case not let these considerations enter their mind? Further, if consideration of the public's mentality on the...