The Problem Of Jury Override In Capital Cases
The ABA death penalty assessment for Alabama highlighted several serious concerns regarding the role of the jury in capital cases. First, judges can override jury recommendations of life. Second, a 10-2 vote – two short of unanimity – is sufficient to support a death recommendation. And, in a slightly different vein, surveys of jurors in capital cases suggest that these jurors are utterly confused about the applicable law. In this post, I’ll attempt to provide further analysis on the issue of jury overrides. (This is my fourth post about the ABA assessment. Others are here, here, and here.)
In Alabama, capital juries only recommend a sentence; the final decision on life or death belongs only to the judge. Alabama is one of only four states that allow a judge to sentence a defendant to death when a jury has rejected this sanction and imposed life. (Some people thought that Ring v. Arizona ended this practice, when it provided that juries – not judges – must find aggravators beyond a reasonable doubt. Because of the structure’s of Alabama’s death statute, however, Alabama courts have thus far upheld Alabama’s override statute.) Of these four states, Alabama is the only jurisdiction that selects judges in partisan elections. Jury override is designed to allow judges to regulate the use of death to insure that the punishment is not imposed arbitrarily or unfairly.
It turns out that in Alabama, 90% of all judicial overrides of jury verdicts impose death against the advice of the jury. Why is this?
It is conceivable that judges are eliminating arbitrarily imposed life sentences, insuring that death is imposed fairly across cases. But one would probably expect more of a 50-50 split if this were the motivation. Perhaps as an artifact of Alabama politics, judges are simply more supportive of death as an effective sentence than juries – though Alabama juries hardly appear to be wilting violets when it comes to imposition of capital punishment.
A shadow possibility, one that would require significantly more research to establish, is that there is a race/politics issue. Alabama is about 25% African-American. African-Americans tend to be more liberal than whites, or at least support Democrats with much greater frequency. Indeed, it appears that a majority of Alabama’s John Kerry supporters were African-American and, conversely, only a tiny portion of George Bush’s support came from African-Americans. Although these political preferences aren’t a pure proxy for one’s view on the death penalty, they do suggest that African-Americans are more likely to be ambivalent about the death penalty. While race distributions vary county by county, it seems likely that many juries would contain both white and black citizens. Judges, on the other hand, are elected on a county-wide basis, and almost every county in Alabama is majority white. Although I do not know the precise numbers, I believe that African-Americans are substantially underrepresented among circuit judges in the state. (For example, as far as i know, thre isn’t a single African-American Republican circuit judge in the state. And there isn’t a single African-American on any state-wide court.) As a consequence, we might expect judges to be more conservative than juries. To the degree that the sentencing decision is informed in significant part by one’s political view of capital punishment, we might expect judges to disagree with juries quite frequently. If this is the explanation for the number of overrides, it introduces a bit of a democratic conundrum – do we use judges as juries to marry political preferences with fact-findings. Whatever the constitutional requirement, it is clear that most other states have resolved this by assigning the death sentencing taks to a jury of a defendant’s peers.
The likeliest possibility, however, is arguably most problematic. It may well be that some judges are imposing death as a political tool rather than as instrument for individualized sentencing. It seems some judges use capital sentencing power as way to establish their political bona fides on the politically charged issue of capital punishment.
For example, as noted in the ABA report, “the day after overriding a jury recommendation of life without parole and sentencing George Martin to death for the murder of his wife, Judge Ferrill McRae’s campaign advertisements ‘touted McRae’s record on sentencing defendants to death’ and mentioned George Martin by name.”
For these judges, the decision to impose death does not flow from their personal convictions married to the facts of a particular case. Rather, they are motivated in significant part by the desire to win re-election. Even if this is not in fact their motivation, the use of capital sentencing decisions in campaigns – particularly in a state where 90% of overrides go against a defendant – certainly creates the impression that capital sentencing by judges is not an individualized, non-political process.
The ABA recommended elimination of Alabama’s jury override provision. Whatever the potential benefits of override, it is doubtful that they are being realized in Alabama.