Death Penalty

Alabama judge sees 'life-to-death override epidemic,' bars death sentences; Florida bill changes law

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Gavel and lethal injection

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

Lawmakers in Florida sent a revised death-penalty law to the governor this week that no longer allows judges to impose the death penalty when jurors recommend life sentences. Meanwhile, an Alabama judge on Thursday struck down that state’s law as applied to four defendants, and said the state’s judicial override system in death cases presented dangers because of political pressures on an elected judiciary. The Washington Post, the New York Times, the Palm Beach Post and have stories on the developments.

The Supreme Court’s 8-1 decision in January said Florida’s sentencing scheme is unconstitutional because the Sixth Amendment requires jurors, rather than judges, to find each fact necessary to impose the death sentence. At that time, Florida allowed judges to decide the aggravating circumstances meriting the death penalty. The case is Hurst v. Florida.

The Supreme Court opinion didn’t strike down provisions of the Florida law that allowed judges to impose the death penalty despite the jury’s recommendation to the contrary. But that system—allowed only in Florida, Alabama and Delaware—is getting some attention nonetheless. Those three states are also the only states that do not require unanimous jury recommendations in death cases.

The Florida bill sent to the governor requires jurors to unanimously agree on at least one aggravating factor for death sentences, and to recommend death sentences on at least a 10-2 vote. Judges would then decide on sentences based on the specified aggravating factors. Judges would be allowed to override the jury’s recommendation and sentence a defendant to life in prison, but they wouldn’t be allowed to override a life-sentence recommendation in favor of a death sentence.

Previously Florida jurors could recommend death sentences on a 7-5 vote without specifying the basis for their recommendation, and judges looked at aggravating and mitigating factors before deciding whether to impose a capital sentence. Florida also previously allowed life-to-death judicial overrides in limited circumstances, though judges “had been advised strategically not to do that,” according to Stephen Harper, supervising attorney of the Florida Center for Capital Representation at Florida International University.

The new bill makes it clear that a judge cannot override a jury’s recommendation of a life sentence, Harper tells the ABA Journal.

The opinion by the Alabama judge, Tracie Todd of Jefferson County, criticized the state’s “life-to-death override epidemic” and said its elected judiciary “has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”

Todd said Alabama’s capital sentencing scheme fails to provide “special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary.”

Todd cited from Justice Sonia Sotomayor’s dissent from cert denial in a 2013 case in which the justice said there have been only 27 life-to-death overrides since 2000, and 26 of them were in Alabama.

Todd said judges in Jefferson County “have imposed life-to-death override more than any other county in the state. Many of these overrides occurred during or near an election year.” She also said there is no uniform system for assigning capital murder cases to judges in the state and “there is evidence that certain high profile cases are assigned to certain judges during election seasons.”

Capital appeals to the state supreme court are “ceremonial at best,” Todd added. She cited statistics showing that state supreme courts with 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 influence of partisan politics on the Alabama judiciary indeed has never ending, interlaced talons that reach into every aspect of its criminal justice system,” she wrote. “It is clear, from here on the front line, that Alabama’s judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”

Alabama Attorney General Luther Strange said the state would appeal and “we fully expect” the ruling will be reversed.

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