Alabama lawmakers have voted to end judicial override, a practice that empowers a judge to override a jury’s sentencing verdict in death penalty cases.
The House of Representatives on Tuesday voted 78 to 19 to pass SB 16, which ends the practice. Alabama is currently the only state in the U.S. that still practices judicial override in capital cases, which has led to the executions of at least 29 Alabama prisoners despite a jury’s vote for life.
The bill now heads to the desk of Alabama Gov. Robert Bentley (R), who is expected to sign it into law.
“We don’t anticipate any pushback from Gov. Bentley,” Frank Knaack, executive director of the anti-death penalty group Alabama Appleseed, said Tuesday shortly after the bill’s passage. “We haven’t heard any concerns from the governor about the bill.”
Knaack notes that even if Bentley declines to sign SB 16, Alabama requires only a simple majority for overriding the governor’s decision, and the bill passed both chambers of the legislature by wide margins.
The state’s judicial override has looked tenuous ever since the Supreme Court’s 2016 ruling in Hurst v. Florida, which struck down a death penalty sentencing scheme that was nearly identical to Alabama’s.
In her concurring opinion, Justice Sonia Sotomayor wrote that the Sixth Amendment requires death sentences like the one imposed on plaintiff Timothy Hurst to be based “on a jury’s verdict, not a judge’s factfinding.”
Sotomayor had chastised the court two years before the Hurst decision for refusing to hear a case on Alabama’s use of judicial override.
“What could explain Alabama judges’ distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty?” she asked. “There is no evidence that criminal activity is more heinous in Alabama than in other states or that Alabama juries are particularly lenient.”
Alabama executes more defendants than states five times its size. It’s also the only state that imposes a death sentence based on a threshold of 10 juror votes rather than a unanimous vote by all 12 jurors.
A 2015 study from the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that 26 out of 34 Alabama death sentences in the past five years were by non-unanimous decisions.
Two of Alabama’s counties were also cited as outliers when it comes to imposing the death penalty. In the Harvard Fair Punishment Project’s 2016 report, both Mobile and Jefferson counties were among 16 U.S. counties — about 0.5 percent— that imposed five or more death sentences between 2010 and 2015.
Data indicate that instances of judicial override are higher in election years, when judges may be especially inclined to appear tough on crime.
“Sentencing decisions, particularly those involving the death penalty, should be free from politics,” Knaack said in a separate statement. “But, because Alabama’s trial and appellate court judges are elected, political calculations can lead judges to arbitrarily override a jury’s vote. This legislation will remove the political pressure placed on judges to override a jury and sentence a person to death.”