Judicial override
is a concept that has been in place since the late 1970s. It’s a permissive
doctrine that gives state trial judges the option to override a jury’s sentencing
determination and institute a sentence the judge believes is more suitable. In
Alabama, judicial override has been used frequently to override jury verdicts
of life without parole for the death penalty. The Supreme Court will soon
decide whether to grant certiorari on the question of whether Alabama’s use of the
judicial override option violates a defendant’s Sixth Amendment right to a jury as
well as the Eighth Amendment’s prohibitions on
arbitrary and capricious death sentences and cruel and unusual punishment.
Trial judges in
Alabama are elected. A study conducted by the Equal Justice Initiative (EJI)—who is representing
both Mr. Lockhart and Ms. Scott—found that judicial
overrides in favor of the death penalty occur far more often during election
years than non-election ones. In 2008, 30 percent of all
those sitting on death row were there by way of judicial override whereas only
7 percent of death row inmates in 1997 (a non-election year) were placed there
due to override.
EJI is asking the
court to decide whether the use of judicial override in Alabama is done in an
arbitrary manner in violation of the Eighth Amendment. This is not the first
time a death row inmate has asked the Supreme Court to hear on the issue of
judicial overrides. In a 1988 dissent to a denial of writ of certiorari, Justice
Thurgood Marshall wrote, “[i]t approaches the
most literal sense of the word ‘arbitrary’ to put one to death
in the face of a contrary jury determination where it is accepted that the jury
had indeed responsibly carried out its task.”
Judicial override
in Alabama may serve as an end to run around the Supreme Court’s mandate issued in
Ring
v. Arizona,
entitling capital defendants to a jury when determining facts considered for a
possible increase in the maximum punishment. A trial judge need only sit and
wait through the sentencing phase with a sitting jury before imposing his own
sentence via judicial override in order to avoid possible claims of denial of
substantive due process, thereby reducing a capital defendant’s right to a jury
at sentencing to a mere formality.
In Alabama, 20
percent of all persons sitting on death row are there by judicial override. All
underwent a sentencing phase where a jury ultimately found the defendant should
receive life without parole—sparing his or her
life. Only two other states have judicial override options available to judges:
Delaware and Florida. Delaware state
judges are not elected and have never used the judicial override option to put
someone on death row. Even though trial judges in Florida are elected, judicial
override has not been used to sentence a defendant to death in over 12 years,
highlighting its rare purpose. Alabama judges, however, have exercised their
override option in 107 cases since 1976—98
of which were used to issue the death penalty.
Alabama currently
has no standard in place dictating when a judge may usurp a jury’s verdict of life
without parole and sentence a defendant to death. Alabama law requires a judge
exercising judicial override to provide a written explanation why; however, it
does not outline which reasons may be appropriate for limiting appellate review
to a plain error standard. Consequently, Alabama judges, who are elected,
retain unbridled discretion so long as they give any reason for their findings.
For example, in the case of Mr. Lockhart, the jury overrode the unanimous jury’s life sentence in
favor of the death penalty—citing to the Judge’s own belief that
the jury was “emotionally and
mentally worn out.” The Judge in that
case further believed the jury was swayed by the victim’s family’s request for
leniency. Even where the victim’s family
discouraged a death sentence, the judge still imposed capital punishment.
Conversely, in the case of Ms. Scott, who was convicted of killing her
6-year-old son by setting fire to her home, the judge overrode a jury’s life sentence for
the death penalty explaining that the victim’s
request for the death penalty factored into the decision to override the life
sentence. Such contrary applications of the judicial override option are
central to EJI’s Eighth Amendment
claim against arbitrary application of the death penalty.
Whether the Supreme
Court will accept certiorari in either Ms. Scott’s or Mr. Lockhart’s case is
uncertain. At least two justices, Sonia Sotomayor and Stephen Breyer have
expressed their disapproval of the option when they issued rare dissents to
another denial of certiorari in 2013. Justice
Sotomayor wrote
in her dissent that the time was ripe for determining whether it is appropriate
for “a single trial
judge’s view to displace
that of a jury representing a cross section of the community.”
While the death
penalty has seen a steady decline in support, it has become a prevalent
headline in current events. The Supreme
Court is set to hear
a case concerning Oklahoma’s use of
unconventional drugs for lethal injection, as well as Florida’s own application
of the death penalty. Further, as the Boston Marathon Bomber trial moves into
the penalty phase, the question of whether to execute Dzhokhar Tsarnaev will be
on the public conscious for the next several months. This increased spotlight
on capital punishment—especially
concerning how and when the courts administer it—could pressure the Supreme Court into
hearing this issue next term.
By
Robert Maes
Senior
Staffer, Criminal Law Practitioner
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