Who decides on life or death: judge or jury?

The use of judicial override in capital cases is emerging as an issue in Florida and Alabama after the U.S. Supreme Court struck down Florida’s death penalty sentencing scheme.

Photo by Pat Sullivan (AP).

A death penalty system that is recently only allowed in three states – Florida, Alabama, and Delaware – is getting some attention.  These three states allow judges to impose the death penalty despite a jury’s recommendation of a life sentence.

Judicial override is developing as an issue after the United States Supreme Court struck down Florida’s death penalty sentencing scheme in January.  In response, Florida governor Rick Scott signed a revised death penalty law on March 7, 2016, that no longer allows a judge to override jurors that recommend a life sentence.

A judge in Alabama has also drawn attention to the allowance of judicial override in the state by striking down Alabama’s death penalty law as applied to four defendants.  The judge’s reasoning centered around the dangers of political pressures on an elected judge, which may be created by an override system.

The decision was made based on the Sixth Amendment, which requires jurors, rather than judges, to find each fact necessary to impose the death penalty.

 In an 8-1 decision, the Supreme Court held that Florida’s death penalty sentencing scheme, in which jurors make capital punishment recommendations and judges make the final decision, is unconstitutional.  The decision was made based on the Sixth Amendment, which requires jurors, rather than judges, to find each fact necessary to impose the death penalty.

Under Florida’s previous system, juries render an “advisory sentence” by a majority vote following an evidentiary hearing.  The juries are not required to specify the factual basis for their recommendation.  The judge then weighs the aggravating and mitigating factors in the case and decides whether the death penalty is warranted.  Although the judge is not bound by the jury’s decision, he or she is supposed to give it “great weight” in making the final determination.

In the majority opinion for the Court, Justice Sonia Sotomayor said that the sentencing scheme is unconstitutional under the 2002 decision, Ring v. Arizona.  In Ring, the Court held that capital defendants are entitled to a jury determination of aggravating circumstances that would make them eligible for a death sentence.

“The Sixth Amendment protects a defendant’s right to an impartial jury,” Sotomayor wrote.  This constitutional right means “a mere jury’s recommendation is not enough,” she wrote, adding that sentencing should rely on a “jury’s verdict, not a judge’s fact finding.”

[Florida’s] new law requires at least 10 out of 12 jurors to recommend the death penalty.

 The new death penalty law in Florida represents a major overhaul of the state’s previous unconstitutional system.  The new law requires at least 10 out of 12 jurors to recommend the death penalty.  Prior to this recommendation, the new law requires jurors to unanimously agree on at least one aggravating factor for a death sentence.  To aid the jurors in this task, prosecutors are now required to spell out, before a murder trial begins, the reasons why a death sentence should be imposed.

Florida’s old law only required that a majority of jurors recommend a death sentence and the jury was not required to specify the basis for their recommendation.  Their recommendation was merely advisory to the judge, who then looked at aggravating and mitigating factors and decided on a death or life sentence.

The new law importantly removes the language saying that judges, “notwithstanding the recommendation of a majority of the jury,” can determine the final sentence.  Judges in Florida can lower a death sentence recommendation to life in some circumstances, but now they will not be able to impose a death penalty without at least a 10-2 jury decision.

The changes made to Florida’s death penalty law were made as a direct response to the Supreme Court’s decision in Hurst.  Death penalty opponents may see this new law as an improvement, but it does not completely fix the state’s death penalty.  Florida is one of only three states that don’t require a unanimous jury decision in favor of execution.

The legislation does not address the 389 death row inmates who were sentenced under the old law.  The state supreme court has been asked to decide if the U.S. Supreme Court ruling is to apply to those prisoners.  In an interview with MSNBC, Death Penalty Center Executive Director Robert Dunhan said that an alternative would be for those cases to be retried and the sentences lowered to life without parole.

 Judge Todd ultimately ruled that Alabama’s death penalty scheme is unconstitutional.

Jefferson County Circuit Judge Tracie Todd barred the death penalty for capital murder defendants Benjamin Action, Terrell McMullin, Stanley Chatman, and Kenneth Billups on March 3, 2016.  Judge Todd ultimately ruled that Alabama’s death penalty scheme is unconstitutional.

The ruling blocks the death penalty in cases that come before Judge Todd specifically, but other judges may follow her lead.  The decision could set a statewide precedent, especially if it is appealed and upheld by an appellate court.

Alabama currently allows judges to override a jury’s recommendation of a life sentence and to impose a death sentence instead.  The state also requires only 10 juror votes for a death sentence recommendation, rather than a unanimous vote.

Todd’s ruling focuses on the partisan interests of Alabama’s judiciary and she concludes that partisan politics potentially impact the frequency of capital punishment.  Jefferson County leads the state in death sentences that result from judicial override.  Many of these overrides occur during or near an election year.

The judge further wrote that many capital murder defendants receive ineffective indigent legal defense.  Currently, a trial judge decides which attorney will represent a defendant in Jefferson County.  In addition, there is no uniform system for assigning capital cases to a judge and “there is evidence that certain high profile cases are assigned to certain judges during election seasons.”

All of these factors, Todd held, mean the death penalty is imposed in a “wholly arbitrary and capricious” manner in Alabama.  Todd added that capital appeals to the state supreme court are “ceremonial at best.”  She included statistics showing that state supreme court judges elected in contested elections affirm death sentences in more than 62 percent of cases, while state supreme courts with lifetime appointees affirm death sentences in only 26 percent of cases.

The state will likely appeal Judge Todd’s ruling and expect it to be reversed.  In the meantime, this decision has brought more attention to the concern over judicial override.

With this increased attention, Alabama may be the next state that is required to overhaul its death penalty scheme.

 Judicial override is now legal in only two states after the change in Florida law.  The new law in Florida is not immune to challenge, since it does not require a unanimous jury vote for the death sentence.  The Supreme Court held that the decision for capital punishment cannot be left in the hands of a judge, but it is not clear whether the jury must be unanimous in their decision.  The next major concern in Florida will be what happens to the nearly 400 inmates on death row and whether the state will be able to begin executions again.

Alabama is a different story.  No one in Delaware is on death row as a result of judicial override.  This is not the case in Alabama and Judge Todd’s recent holding has drawn increasing attention to the state’s override rates.

Supreme Court justices have criticized Alabama’s death penalty scheme before.  On November 18, 2013, the United States Supreme Court denied a request to review the case of Mario Woodward, who was sentenced to death in Alabama even though his jury voted against imposing the death penalty.  Justice Sotomayor, joined in part by Justice Breyer, dissented from the Court’s decision to deny review, observing that Alabama “has become a clear outlier” when it comes to judicial override.  Justice Sotomayor wrote that “Alabama now stands as the only one in which judges continue to override jury verdicts of life without parole.”

With this increased attention, Alabama may be the next state that is required to overhaul its death penalty scheme.

Hannah Emory, Associate Editor
About Hannah Emory, Associate Editor (15 Articles)
Hannah Emory is a Campbell Law graduate and served as an Associate Editor for the Campbell Law Observer for the 2015-2016 academic year. She is originally from Dunn, North Carolina and graduated from the University of North Carolina at Chapel Hill in 2013 with a Bachelor of Arts in Political Science and History. Following her first year of law school, Hannah interned at the North Carolina Office of the Juvenile Defender.
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