Administration of Justice or the Preservation of Political Office: The Unconstitutionality of Judicial Override in Alabama Death Penalty Cases

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INTRODUCTION

Perhaps no other area of law generates as much debate and research as the death penalty. Death penalty research covers a wide range of topics, and seeks to understand the moral, legal, political, philosophical, and psychological underpinnings of the ultimate punishment. While this research has been extensive, it has not been exhaustive. One topic in particular deserves further attention: the judicial override in Alabama.

Judicial override is the process by which a judge "overrides" a jury's recommended sentence. While thirty-five states have death penalty statutes, (1) only three states allow for judicial override. (2) Alabama, however, is the only state in the country that combines the partisan election of judges with judicial override. Further, Alabama is unique because the "trial judge has unbridled discretion to sentence the defendant to death," over a jury's recommendation of a life sentence, due to the "complete absence of standards to guide a judge's consideration of the jury's verdict." (3) The unique combination of politics and deficient judicial standards for the override process in Alabama demands further analysis.

Even though the United States Supreme Court has failed to recognize a constitutional right to a jury sentence in capital cases, (34) the right may still exist. This paper will attempt to show that the practice of judicial override in the state of Alabama is unconstitutional. Judicial override and partisan judicial elections cannot coexist in a fair justice system because a judge seeking political office has a vested interest in imposing heavier sentences. Section I sets out to define the process of judicial override in Alabama. Section II highlights the extreme political nature of the Alabama judiciary. Section III provides a summary of relevant Supreme Court decisions. Section IV examines the arguments in favor of judicial override. Section V attacks the arguments of those in favor of Alabama's flawed system, and challenges that system as unconstitutional. Section VI offers suggestions for a solution.

There are many troubling features of judicial override in Alabama. Perhaps the most troubling characteristic is that a judge, quite literally, holds a life in his hands. Because one person may determine life or death, there is substantial room for error: The case of Walter McMillian, who was tried and convicted of murder, illustrates how close the override has come to taking an innocent life. (6) The jury convicted McMillian due largely to the state's eyewitness testimony. (7) In contrast, the jury did not believe McMillian's alibi witnesses. (8) In fact, the jury disregarded multiple ac counts of defense witnesses providing a solid alibi for McMillian. (9) Despite the jury's certainty regarding these witnesses, it still recommended McMillian serve life in prison rather than receive a death sentence. The judge, however, unilaterally overrode the jury's recommendation and imposed the death sentence. (10) Because of Alabama's judicial override procedure, the judge was able to sentence McMillian to death over the jury's recommended sentence. (11) McMillian, however, was exonerated of this crime because he was innocent. (12) The judge's attempt to be "tough on crime" nearly cost an innocent man his life. Because of the possibility that an innocent person may be executed by the state, the decision to condemn an individual to death should be left to an impartial jury. This decision should be taken out of the hands of judges who might have a greater interest in securing their office through a "tough on crime" stance, rather than securing justice.

I. THE PROCESS: HOW JUDICIAL OVERRIDE WORKS IN ALABAMA

Alabama enacted its current death penalty statute in 1981. (13) This statute has undergone little transformation in subsequent decades. (14) In order to be eligible for the death sentence in Alabama, a unanimous jury must find beyond a reasonable doubt that the defendant is guilty of "capital" murder. …