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Judicial Overrides in Death Penalty Cases

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The US Supreme Court decided no cases today and did not take up any additional cases for decision on the merits.  There were a few opinions of individual justices commenting on the cases the court did not take.  One involves judicial overrides of jury sentence recommendations in capital cases.
In a few states, the jury makes only a recommendation on the sentence in a death penalty case, and the judge makes the final sentencing decision.  When should the judge "override" a jury's recommendation?  Should the standard be any different based on the direction of the override?

In the initial years after Furman v. Georgia (1972), capital sentencing reform was all about reducing arbitrariness and achieving greater uniformity.  If that is the goal, arbitrariness curbs should apply in both directions.  A murderer should not be arbitrarily selected for death for a crime and with a criminal history that does not actually place him in the upper end of the heinousness range.  If we could quantify heinousness, we might say two sigma above the mean.  But we can't, so we say "the worst of the worst."

Equally important, if reducing arbitrariness is the goal, a murderer who really deserves his spot among the worst of the worst should not be arbitrarily spared his deserved sentence.  This runs counter to the desire of those who simply wish to minimize the number of executions, though, and safeguards against arbitrary leniency have steadily eroded since the early days.

In Florida, the state supreme court quickly put such strict limits on judicial overrides of life-sentence recommendations that those "recommendations" are essentially verdicts.  "In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (1975).  The Alabama Supreme Court declined to follow Tedder due to the difference in the wording of the statute.  "Adopting a rule like the one set forth in Tedder would impermissibly rewrite the statute, in violation of our constitutional duty to observe the separation between the powers conferred upon the judiciary and those conferred upon the Legislature."  Ex parte Jackson, 836 So. 2d 979, 989, n. 5 (2002).

In Woodward v. Alabama, No. 13-5380, turned down by the high court today, Justice Sotomayor notes that Alabama has become an outlier in terms of judicial overrides in this direction.  Why? "The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures."  No mention of the Tedder/Jackson split in the governing standard or the statutory wording that prompted it.  The citations that Justice Sotomayor offers to support her conclusion are to hard-core anti-death-penalty activists.

Are elections a factor?  They might well be, but to declare them the sole factor without any reference to the fact that the judges are operating under different standards as decided by their respective state supreme courts interpreting acts of their respective legislatures does a disservice to the trial judges.

There is also something a bit strange about complaining that a judge supposedly influenced by elections is permitted "to displace [the view] of a jury representing a cross-section of the community...." (P. 8.)  Doesn't the electorate represent the community far better than the jury?

Most, if not all, states allow a trial judge to override a jury verdict or recommendation of death, although the standard varies.  No loud objections have been voiced to this practice.  It is deemed an important safeguard against arbitrariness.  Arbitrariness is a two-sided coin, and it makes sense to have some safeguards against arbitrariness on the other side of the coin.  Allowing judicial override in the reverse direction is an attempt to establish such a safeguard.  As a policy matter, it is certainly debatable.  But it is a choice the people of Alabama have made, and nothing in the Constitution of the United States forbids it.

1 Comment

Thank you. Very helpful.

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