Most people in the United States believe that the death penalty is a sentence imposed by 12 members of a jury. Some may be surprised to learn that in one state, and only one state, a jury’s decision to impose a life sentence can be overridden by a trial judge, who then has the power to singlehandedly impose the death penalty. What may be less of a surprise is that the one state allowing this practice is U.S. Attorney General Jeff Session’s sweet home Alabama.
The policy is commonly known as “judge override.” According to the Equal Justice Initiative, an organization that addresses racial and economic injustice including mass incarceration and excessive punishment, “judge override is the primary reason why Alabama has the highest per capita death sentencing rate in the country.”
Currently, in the Alabama legislature, there is a bipartisan effort to eliminate the judge override with a bill sponsored by a Republican in the state Senate and a similar bill sponsored by a Democrat in the state House. The primary difference between the two is that the House version goes the extra step of requiring a unanimous jury verdict to impose the death sentence. Currently, juries require only 10 votes for such a recommendation. The Senate version of the bill has already passed the Senate, and the House should vote on its version within the next few days.
Until last year, two other states, Florida and Delaware, also allowed judge overrides. Court rulings at the U.S. Supreme Court and the Delaware Supreme Court declared the policies unconstitutional in those states.
However, even before the practice was eliminated in the other states, Alabama judges utilized judge overrides far more frequently than anywhere else. “As of late 2013, Alabama judges were responsible for 26 of the 27 instances since 2000 in which a judge in any state has overridden a jury’s advisory sentencing verdict of life without parole,” according to William Clark, the past president of both the Birmingham Bar Association and the Alabama State Bar Association. Clark, along with 100 other attorneys and law professors, submitted a petition to Alabama’s governor seeking sentencing changes for 34 inmates on death row due to judge overrides.
Part of what drives the zealous use of judge override in Alabama is the fact that the state is one of just a handful that use partisan elections to select judges. The vast majority of states use either nonpartisan elections or some form of appointment system. As a result of Alabama’s judicial election system and the motive to appear tough on crime, “life-to-death overrides in Alabama are more frequent in election years.”
More importantly, in the United States in general, and Alabama and the South in particular, one cannot ignore the role of race and the historical connections between lynchings and the death penalty. According to EJI, “more than eight in 10 American lynchings between 1889 and 1918 occurred in the South, and more than eight in 10 of the more than 1400 executions carried out in this country since 1976 have been in the South.” Moreover, the impact of race is not only about the race of the alleged perpetrator, it is about the victim as well.
“There is evidence that elected judges override jury life verdicts in cases involving white victims much more frequently than in cases involving victims who are Black. Seventy-five percent of all death sentences imposed by override involve white victims, even though fewer than 35 percent of all homicide victims in Alabama are white.”
But the ills of Alabama’s death penalty system are not limited to the judge override mechanism. The state’s entire framework for capital punishment has the effect, whether intended or otherwise, of facilitating death sentences and perhaps no other state attorney general was as aggressive at taking advantage of that framework than Jeff Sessions.
The New York Times points out that during Sessions’ tenure as Alabama attorney general from 1995-1997, “He worked to execute insane, mentally ill and intellectually disabled people, among others, who were convicted in trials riddled with instances of prosecutorial misconduct, racial discrimination and grossly inadequate defense lawyering.”
Sessions was such a fan of the death penalty that he even supported a state bill that would have imposed mandatory death sentences on drug dealers, including those caught dealing marijuana.
Within the next few weeks, the Alabama legislature may, in fact, eliminate the most glaring example of the state’s support of a racist, economically exploitative and ultimately counter-productive system of punishment. But, the cancer affecting its justice system runs far deeper.