Reforming the jury override: protecting capital defendants' rights by returning to the system's original purpose.

• Author: Richardson, John M.

1. INTRODUCTION

   The death penalty has been justified as the "community's judgment... [of] the defendant's outrageous affront to humanity." (1) In Alabama and Florida, (2) the two states that use the so-called "jury override" (3) in capital cases, the ultimate decision of life or death is left to the trial judge, not to the jury, as the best reflection of the "community's judgment." After the guilt phase of the trial, the jury issues only an advisory sentence of life or death, which the trial judge has the authority to override. (4) In Alabama and Florida, judges have used their override power eighty-three and 167 times respectively, to sentence a defendant to death after a jury recommended life. (5) Originally envisioned by the legislatures as a way for judges to safeguard the capital sentencing process by reversing outraged, "inflamed" juries set on imposing death, (6) the data supports a different conclusion: When judges use their override power, they use it to impose death in the vast majority of cases. (7)

   The override has been the subject of legal scholarship over the past decade, (8) but recent events make a re-examination of the issue and reform suggestions timely. In June 2002, the U.S. Supreme Court held in Ring v. Arizona that a trial judge alone could not determine the presence of aggravating and mitigating factors for imposing the death penalty without violating the defendant's Sixth Amendment right to a jury trial. (9) The Court held that a jury must make the fact findings required to increase a defendant's sentence. (10) In Arizona, where judges made sentencing decisions alone, Ring struck down the state's capital sentencing law. (11) Scholars maintain there is little difference between the Arizona system and the override as the judge retains the ultimate power for sentencing in both. (12) Yet appellate courts in Alabama and Florida that have reviewed cases brought under Ring have been reluctant to strike down their own laws for fear of "seriously undermining citizens' faith in [their] judicial system[s]." (13) Florida Supreme Court Justice Charles Wells warned that if Ring invalidates the Florida system, most of Florida's death row inmates would have a new basis for challenging their sentences, which would have a "catastrophic effect on the administration of justice." (14)

   Fearing the worst, state legislators have introduced bills to reform the override, believing that ultimately the current system will have to change. (15) Thus, with speculation surrounding the override's future, (16) it is appropriate to review long-standing constitutional concerns about the system and to further explore why the state courts are upholding the override, despite the seemingly obvious dictates of Ring.

   Equally important, this Comment sets forth reasons why the override should not be completely overhauled, as some have advocated, and why a return to the system's original purpose is needed. (17) The controversial life-to-death override should be abolished, but the death-to-life override, where the trial judge acts as a check on the sentencing process, should be retained. In fact, the Illinois Commission on Capital Punishment recently recommended adopting a variation on the death-to-life override as part of that state's capital sentencing reform process. (18) The "catastrophic effect" of striking down the override laws can be avoided with common-sense reforms that retain many of the safeguards that served as the impetus for the override design. (19)

   Part II reviews the history of how the override developed in response to the U.S. Supreme Court's landmark decision in Furman v. Georgia (20) and details the capital sentencing process in Florida and Alabama, the only two states to use the override. Part III explores the various policy rationales for the system, explaining how it was adopted as a check on "inflamed" juries and how the data suggests it is used differently in practice. Part IV reviews constitutional challenges made by defendants who have had jury recommendations of life overridden, including arguments made on Sixth, Eighth and Fourteenth Amendment grounds. Finally, Part V concludes that the life-to-death override fails to adequately safeguard capital defendants' constitutional rights and makes suggestions for how the system can be improved with modifications.

2. BACKGROUND ON THE OVERRIDE AND A REVIEW OF THE STATUTORY SCHEME

   1. FURMAN REQUIRED GUIDED DISCRETION

      In Furman v. Georgia, the U.S. Supreme Court held that juries alone could not have complete discretion over sentencing a defendant to death. (21) Motivated by concern that racial discrimination was influencing the sentencing process, (22) the Furman Court held that by not providing proper guidance to jurors, state and federal death penalty laws in 1972 violated the Eighth Amendment's ban on cruel and unusual punishments as it is applied to the states through the Fourteenth Amendment. (23)

      Justice Stewart's concurrence noted that jury discretion was being administered in a "freakish" and "wanton" (24) manner, providing no clear explanation for why some defendants are sentenced to death and others spared. (25) The Furman Court thus required that a "[s]entencer's discretion ... be properly channeled and guided so as to minimize the risk that death will be imposed arbitrarily and capriciously." (26) While not a per se constitutional violation, the inconsistent manner in which death was handed down ran contrary to the Court's mandate that it be imposed with heightened scrutiny. (27) The Furman ruling struck down state and federal death penalty laws, requiring that all new statutory schemes be "reasoned and controlled, rather than capricious and discriminatory." (28) As a result, thirty-five states responded by enacting new laws that either created mandatory death sentences for certain offenses or provided more guidance for capital juries. (29) In Woodson v. North Carolina, the Court struck down the mandatory death penalty statutes for certain offenses that had been enacted in ten states, citing their failure to take defendants' individual circumstances into account, as required by the Eighth Amendment. (30)

      Citing the presence of clear standards for guiding jury discretion, (31) the Court in Gregg v. Georgia, Profitt v. Florida, and Jurek v. Texas (32) upheld the statutes enacted in the other twenty-five states, (33) all of which provided for a bifurcated trial, where the jury first determines the defendant's guilt, and then determines the existence of specific aggravating and mitigating factors in a separate hearing during the sentencing phase. (34) By focusing the jury on aggravating and mitigating factors, these so-called "guided discretion statutes" (35) prohibited juries from deciding the issue of life or death based on gut reaction alone. (36)

      Furthermore, the Court detailed the features of the new laws that better protect defendants' constitutional rights. The Court in Gregg specified three safeguards that must be present: bifurcation (having two successive phases of conviction and then sentencing); (37) balancing of aggravating and mitigating circumstances where at least one aggravating factor must be found to justify death; (38) and direct review of death penalty verdicts by the state's highest Court. (39) In Gregg, Profitt, and Jurek, the Court upheld the re-enacted statutes in Georgia, Florida, and Texas respectively, as having encompassed these safeguards. (40)

      Among the states that adopted "guided discretion statutes," three distinct types of capital sentencing schemes emerged, where either juries have exclusive sentencing authority; judges have exclusive sentencing authority; or juries play an advisory role to the judge, who ultimately renders the final verdict. (41) Thus, while states differed in their approach to complying with Furman, the systems developed by the states to avoid arbitrary sentencing either gave the judge or jury exclusive power, or combined power in both. The latter approach--the override--combines the features of the two extremes in its hybrid scheme.

   2. THE STATUTORY SCHEME

      The override complies with the Furman decision by requiring separate trial and sentencing phases, followed by automatic appellate review. (42) After a defendant is found guilty of a capital crime as prescribed by state law, (43) a sentencing hearing is held before the same judge and jury to determine whether the defendant receives life imprisonment or death. (44) At the conclusion of the hearing, the jury weighs aggravating and mitigating circumstances in rendering an advisory verdict. (45) In Florida, a simple majority of the jury determines the advisory verdict, after which the judge hands down the final verdict. (46) In Alabama, the jury's advisory recommendation must be based on a vote of at least ten jurors. (47) The judge in each state is also required to weigh aggravating and mitigating circumstances in making a written decision, to better facilitate appellate review. (48)

      Under section 921.141(4) of the Florida Statutes, all death sentences must be reviewed by the Florida Supreme Court. By contrast, section 13A5-53 of the Alabama Code calls for appellate review of death sentences by the Alabama Court of Criminal Appeals only, although this court's findings may be reviewed by the Alabama Supreme Court. Appellate review under section 13A-5-53 includes a proportionality test and "weighing of the aggravating and mitigating circumstances," (49) but the weighing of factors is based on the judge's factual findings, not on the jury's.

      As an additional protection in Florida, the state supreme court held in Tedder v. State (50) that a trial judge may only override a jury's advisory verdict if the facts are "so clear and convincing that virtually no reasonable person could differ." (51) Alabama has not adopted the same standard. In Harris v. Alabama, (52) the defendant argued the Tedder standard was required, but the U.S. Supreme Court...