Overriding the Jury in Capital Cases
By ADAM LIPTAK
WASHINGTON — Alabama allows judges to reject sentencing decisions from capital juries, which sounds like a sensible idea. You might want a mature and dispassionate jurist standing between a wounded community’s impulse toward vengeance and a defendant at risk of execution.
“If you didn’t have something like that,” said Judge Ferrill D. McRae, who spent 40 years on the bench in Mobile before he retired in 2006, “a jury with no experience in other cases would be making the ultimate decision, based on nothing. The judge has seen many, many cases, not just one.”
Judge McRae, chatting on the phone the other day, recalled having breakfast with Justice Thurgood Marshall at an American Bar Association meeting not long after the Supreme Court reinstated the death penalty in 1976.
Justice Marshall was a fierce opponent of the death penalty. But, according to Judge McRae, the justice also saw the wisdom of the override system. “He thought it was better that someone who had seen more than one case was making the decision,” Judge McRae said.
What Justice Marshall probably did not anticipate, though, was that judges in Alabama would not use their power for mercy — that they would, in fact, be even tougher than juries. Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence.
More than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas.
Judge McRae himself ordered six defendants executed notwithstanding jury verdicts calling for life sentences, more than any other judge in Alabama in the modern history of capital punishment. But he never rejected a jury’s recommendation of death.
Judge McRae said he had tried to determine, in the words of an Alabama law, whether the crime in question was “especially heinous, atrocious or cruel.” Having seen a lot of cases helped him make that decision, he said. “Juries don’t know,” he said, “what is ‘especially heinous, atrocious or cruel.’ ”
Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired in 2001, said he had rejected one jury’s recommendation that a white defendant’s life be spared on the ground of racial equality. “If I had not imposed the death sentence, I would have sentenced three black people to death and no white people,” he said at a sentencing hearing in 2000.
Judge Charles C. Partin, who sat in Bay Minette, said the defendant before him was probably not mentally disabled, a factor that may have figured in the jury’s life verdict. “The sociological literature suggests that Gypsies intentionally test low on standard I.Q. tests,” he wrote in a 1990 sentencing order.
Florida and Delaware also allow overrides, but they are subject to strict standards. No one has been sentenced to death in Florida as a result of a judicial override since 1999, and no one is on death row in Delaware as a consequence of an override. The most recent override in favor of death in Alabama was in March.
Judges in Delaware are appointed and generally use their authority to reject death sentences. Alabama judges are elected, often running on tough-on-crime platforms. Overrides are more common in election years.
“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system. Much has changed in sentencing law since then, and it is not clear that the system would survive a new look from the Supreme Court.
One thing that is clear is that Justice Marshall, whatever he said at breakfast, was appalled by how things turned out in Alabama. “It approaches the most literal sense of the word ‘arbitrary,’ ” he wrote in a 1988 dissent, “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.”
Alabama jurors are not notably squeamish about the death penalty, and those opposed to it are automatically excluded from service. Deliberations can be agonizing, former jurors say, adding that they would expect their recommendations to count.
William Davis, who served on a capital jury that voted for a life sentence, said he did not see the point of the exercise after a judge dismissed the jury’s unanimous recommendation as “not helpful.”
“If the judge is going to overrule the jury,” he said in a court hearing in Montgomery last year, “then you don’t need a jury. The jury don’t serve a purpose.”