Localism and Capital Judicial Override in Jefferson County, Alabama

• Date: 01 April 2016
• Published date: 01 April 2016
• DOI: 10.1177/2153368715595268
• Subject Matter: Articles

Article

Localism and Capital

Judicial Override in

Jefferson County, Alabama

Paul Kaplan

1

, Kerry Dunn

2

and Nicole Sherman

3

Abstract

This article is an analysis of capital judicial override in Alabama through localist the-

ories of capital punishment, with special focus on Liebman and Clarke’s arguments

about parochialism and libertarianism. We suggest that localism is related to high rates

of death sentencing in one county even when the sentencing agent is a judge, not a

jury. We begin with a review of Liebman and Clarke’s analysis, then proceed with a

description of the law on override in Alabama, and conclude with a qualitative content

analysis of sentencing opinions from Jefferson County, Alabama (which has the highest

number of overrides to death). After finding evidence of parochialism and libertar-

ianism in all of the sentencing opinions, we suggest that localism may be related to high

death sentencing in Jefferson County and urge scholars to study this phenomenon in

other high death penalty active counties.

Keywords

race and sentencing, race and courts, supreme court decisions, race and death penalty,

guided discretion statutes, race-of-the-victim effects

Introduction

The latest academic discussions of capital punishment in the United States downplay

traditionally understood ‘‘uses’’ of the institution, such as deterrence or retribution,

1

School of Public Affairs, San Diego State University, San Diego, CA, USA

2

University of New England, Portland, ME, USA

3

University of California, Irvine, Irvine, CA, USA

Corresponding Author:

Paul Kaplan, School of Public Affairs, San Diego State University, 5500 Campanile Drive, San Diego, CA

92182, USA.

Email: pkaplan@mail.sdsu.edu

Race and Justice

2016, Vol. 6(2) 170-190

ªThe Author(s) 2015

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DOI: 10.1177/2153368715595268

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and focus on its relationship with America’s especially localized and hyperdemocratic

political system (Garland, 2010; Liebman & Clarke, 2011). Encapsulated, these

analyses argue that ‘‘almost all there is to know about [the USA’s] death penalty is

local, not national’’ (Liebman & Clarke, 2011, p. 258), and that it is this localism that

explains the various features of the American death penalty that intrigue scholars,

activists, and policy makers (e.g., its presence at all, its Southerness, its racism, its

deference to victims’ families, its ‘‘brokenness,’’, etc.; Garland, 2010; Liebman &

Clarke, 2011). These foci together build a theoretical typology of ideologies that we

will for now lump together under the umbrella term ‘‘localism.’’

For example, in Peculiar Institution, Garland (2010) identifies a set of cultural

scripts in America—populism, localism, liberalism, individualism, religiosity, and

ruggedness—that, while not exactly responsible for American retention of the death

penalty, are connected to its rigidly local form of democracy that makes national

abolition difficult.

1

Earlier, Zimring (2003) focused on vigilantism and ‘‘privatiza-

tion’’ of the death penalty by imagining it as a service for the families of murder

victims. Recently, Kaplan (2012) focused on an American Creed, involving ‘‘liberty,

egalitarianism, individualism, populism, and laissez faire,’’ in relation to retention.

And also recently—occasioning this article—Liebman and Clarke (2011) argue that

libertarianism and parochialism ‘‘characterize the communities most disposed to

impose death sentences’’ (p. 1). While these treatments of America’s death penalty

differ considerably in specific focus, argument, and implication, they all share a belief

that there is a relationship between the death penalty in America and some version of

ideologies we are calling localism. ‘‘Localism,’’ of course, is an ideal type. As we use

it in this article, it refers to a constellation of the ideologies we have just identified in

recent academic literature on capital punishment; if a person has a ‘‘localist’’ per-

spective, she will be individualistic, religious, receptive to populist arguments, have

libertarian attitudes about government, and be opposed to cosmopolitan ideas or

foreign cultural values. A central element of these ideologies is a rejection of or

resistance to federal—and potentially all—government power.

2

Having a political

system that defers to local decision making on criminal justice (Garland, 2010),

conceiving of the death penalty as a service for victims’ families (Zimring, 2003), or

emphasizing libertarian values in capital trials (Kaplan, 2012) or counties (Liebman &

Clarke, 2011)—all of these modes of the death penalty reflect a dislike of state power

and are characteristic of areas with high death sentencing rates.

Of course, in an obvious sense, capital punishment is the zenith of a sovereign

government’s power—recall Weber’s (1946) classic definition of a state as the

legitimate authority to dominate (p. 78). But, outside the relatively arcane scene of

academia, most talk in America of capital punishment—at least until very recently

3

—

has been about either the titillating aspects of murder and execution or the somber

necessities of justice (Garland, 2010). Put simply, most Americans just do not see the

death penalty as an expression of state power,

4

despite the fact that it certainly is.

Part of the reason for this is probably because of the prominent role of the jury in

contemporary capital jurisprudence. Beginning with Gregg v. Georgia (1976), and

continuing with cases such as Ring v. Arizona (2002), death penalty law has made the

Kaplan et al. 171