Judicial override in death penalty sets dangerous precedent
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Should a judge or a jury have the power to decide that a capital defendant will die? That question is at the center of a remarkable turn of events in the state of Alabama.

In contrast to virtually all other jurisdictions, in Alabama, it is the trial judge, not a jury of citizens, who makes the decision to sentence capital defendants to death. Alabama’s capital juries give only advisory recommendations in death penalty sentencing. Their recommendations to spare a defendant’s life can be – and often are – overturned by the trial judge.


This practice of “judicial override,” in which judges can ignore a jury’s recommendation and sentence a defendant at odds with the jury’s recommendation, has contributed to the fact that Alabama has one of the highest death sentencing rates in the country. One out of five people on Alabama’s death row are there because a judge overrode a jury’s recommendation to spare the defendant’s life. The state has resisted multiple calls to change the system and empower the jury.


However, in a notable shift last week, the Alabama State Senate passed a bill requiring that juries have the final say when the jury recommends life imprisonment rather than a death sentence.  A similar bill has been sent to the Alabama House of Representatives.

The Senate bill allows just ten of twelve jurors to recommend death, but the House bill requires that all twelve jurors agree on a death sentence. In both bills, a life sentence requires that a majority of jurors agree.

A jury, not a judge, should determine whether a capital defendant deserves the death penalty. Trial by jury includes the right to have all facts relevant to a sentence of death decided by a jury, and is enshrined in the Sixth Amendment to the U.S. Constitution for good reasons.

First, juries are better able to represent the community than judges are. Jurors are selected at random from citizens in the local community. Even taking into account that capital jury selection decreases representativeness, capital juries are more likely to include people from all walks of life than professional judges, who tend to reflect an elite, predominantly white, and largely male slice of the community.

For example, an American Judicature Society analysis based on 2008 data reported that 88 percent of Alabama state court judges were male and 93 percent were white. More recent data from 2014 showed that nationwide, 68 percent of active federal district court judges were male and 75 percent were white.

Second, it makes a difference who decides. Judges are more likely than juries to decide on death. In Alabama, the Equal Justice Institute reports that judges have overridden jury verdicts in 112 cases to date, about a quarter of all death sentences.

In 91 percent of these cases, judges have imposed death sentences when juries recommended life.  The most recent example: Ronald Bert Smith was executed on Dec. 8, 2016 after an Alabama judge sentenced him to death even though the majority of the jury recommended that his life be spared. The Equal Justice Institute analysis showed that the frequency of judicial overrides varied by geography and whether the victim was white, raising concerns about fairness.

Additional evidence that judges are more prone than juries to decide on death comes from research I conducted along with my colleagues and students at Cornell Law School on thirty years of death penalty cases in the state of Delaware.

Halfway through our study period, Delaware shifted from a jury sentencing approach to judge sentencing, like Alabama’s. That allowed us to compare how that shift from jury to judge sentencing affected the outcomes in capital cases. We discovered a dramatic increase in death sentences when judges instead of juries were the final arbiter of death.

In 2016, the Delaware Supreme Court overturned the death penalty statute on constitutional grounds; we were gratified that they cited our articles in the judicial opinion.

Giving judges the final decision has other negative consequences. Accuracy suffers. A recent article in the Yale Law Journal Forum reported that death sentences in judicial override cases were more likely to be overturned on appeal because of errors. Of the six Alabama death row defendants who have been exonerated in the modern period of capital punishment, three were judicial override cases.

When judges are in charge of the final decision, jurors recognize that the judge and not the jury is responsible for the sentence. Juries in judicial override states take less time reviewing and discussing the evidence relevant to sentencing. And jurors often recommend life when they have residual doubts about a defendant’s guilt. Judicial override, though, wipes out the jury’s caution.

Requiring unanimity boosts the care that a jury takes in deliberation. It encourages full participation by all members of the jury in the significant decision the jury makes on behalf of its community. A unanimous jury decision has more legitimacy as well.

Some might say that juries can be biased, and judicial ability to override biased jury decisions are needed as an added layer of protection. Ample research, however, shows that judges suffer from many of the same biases. What is more, in states like Alabama, where judges are elected, they are subject to an additional source of influence – the pressure to show the public that they are tough on crime.

That may be why judicial overrides from life to death are sometimes higher in election years than during other times. Giving juries the final decision takes this source of pressure off judges.

In sum, juries, not judges, should determine who is to receive our nation’s most severe penalty. I urge Alabama’s legislators to join the rest of the nation and ensure that unanimous juries, not judges, decide who receives the community’s ultimate penalty.

Valerie P. Hans is Professor of Law at Cornell Law School. Author of over 100 research articles and four books on the jury system, she is a 2017 Public Voices Fellow of the OpEd Project.

The views expressed by contributors are their own and are not the views of The Hill.