The Pressured Decisions in Capital Cases




Let’s talk about capital sentencing for a moment. Bryan Stevenson, Executive Director of the Equal Justice Initiative said, “If you’re a prosecutor or judge who has to run for reelection, and you have to worry about your identity in the community, frankly nothing says ‘tough on crime’ like the death penalty.”


The surveyed empirical studies conclude that electoral pressures influence judges’ decisions in capital cases as well. Researchers have found that appellate judges facing reelection are more inclined to affirm death sentences, and less inclined to dissent from orders affirming them.


In Alabama, with its unique system of judicial override, trial judges are more likely to impose death over jury verdicts of life imprisonment during election years. Among death penalty states, Alabama is 1 of only 3 allowing trial judges to disregard a jury’s recommended sentence of life without parole. We’re also the only state with no guidelines on how judges make decisions to “override” a jury recommendation.


Judicial overrides land disproportionately heavily on black defendants. 6 % of Alabama murders are committed by black offenders against white victims, but 31 % of override cases involve black defendants and white victims.


Recent data on State Supreme Court decisions in capital cases lends further support to these findings. In a 2015 study, Reuters found that over the past 15 years, in the 37 State Supreme Courts that reviewed capital cases, there was “a strong correlation between the results in those cases and the way each state chooses its justices.” Specifically, states with appointed justices reversed death penalty sentences at the highest rate, 26 %. States with judicial elections had substantially lower reversal rates: 15 % in states with appointed justices who must face retention elections and 11 % in states where justices are elected in contested elections.


While the ultimate decision of life or death is left to the jury in most states that permit capital punishment, three – Alabama, Delaware and Florida – allow a judge to override the jury decisions. Of these, Alabama’s practice stands out of three reasons: (1) In no other state do judges exercise the right to override regularly. (2) Alabama judges can override jury verdicts for any reason, and (3) Unlike the two other states, Alabama selects its judges through partisan elections. As of 2013, Alabama judges have imposed death sentences contrary to the jury’s verdict in 95 cases. The vast majority of criminal defendants – including capital defendants – face elected judges at trial and on appeal. According to the report, 87 % of state judges face election, and 94 % of felony convictions are tried in state courts.


The United States Supreme Court upheld this system in Harris vs. Alabama (1995) and declined to reconsider it in Woodward vs. Alabama (2013), over the forceful dissent of Justice Sonia Sotomayor, joined in part by Justice Stephen Breyer. “Why do Alabama judges have a particular appetite for death sentences when a jury voted for a sentence of life imprisonment?” “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.”


Bryan Stevenson provided the court much of the empirical cited in Woodward. He found that in “a mini-multiple regression analysis of how the death penalty is applied and how override is applied, there is a statistically significant correlation between judicial override and election years in most of the counties, where these overrides take place.”


EJI’s research confirmed that there is a higher proportion of death sentences imposed by override in Alabama during election years. The report asserts that even some Alabama judges have acknowledged the impact electoral pressures can have on their decisions in capital cases. For example, C. Tommy Nail, an Alabama Criminal Court judge who has exercised judicial override to convert a life sentence to a capital one, said in 2011 that while voter reaction is not a conscious part of his sentencing in capital cases, it has to “have some impact, especially in high profile cases”.


A large – and growing – body of empirical studies finds that reelection and retention pressures systematically disadvantage criminal defendants. Judges make decisions that affect the liberty, and even lives, of the criminal defendants who come before them. State Court judges, most of whom are elected, make most of these decisions. Judicial elections are now expensive and politicized, with candidates’ criminal justice records as a centerpiece. Television ads extolling some candidates as “tough on crime” and portraying others as “soft on crime” are increasingly prominent. These appeals to voters have an effect on judicial decision making. Empirical studies across states, court level, and method of election find that proximity to reelection makes judges more punitive – more likely to impose longer sentences, and even override life sentences to impose death. Without reform, terms of incarceration and executions will continue to be determined, in part, by the decision-maker’s proximity to reelection.




by: P.T. Robbins



Immediately after the Hurst decision in Florida the attorney general of Alabama (Luther Strange) released statements saying, “The Hurst decision doesn’t affect Alabama’s death penalty sentencing scheme.”


In the following weeks, after Luther Strange’s statement, judges across Alabama have been repeating his words and continuing to sentence defendants to death.


Recently, a circuit court judge in Jefferson County, Alabama (the Honorable Tracey Todd) ruled that the Hurst decision does affect Alabama and therefore Alabama’s death penalty sentencing scheme is unconstitutional.


Previously to the Hurst ruling Luther Strange (Alabama attorney general), Tim Fox (Montana attorney general), Andrew L. Brasher (solicitor general counsel of record), Megan A. Kirkpatrick (deputy solicitor general) filed a “Brief of Amici Curiae” in support of the State of Florida against petitioner Hurst.


In this brief Luther Strange argued that the Supreme Court of the United States should not overrule Harris v. Alabama and Spaziano v. Florida.


Now, in Harris v. Alabama, the United States Supreme Court recognized Alabama’s sentencing scheme in capital cases is based on Florida’s sentencing scheme. See Harris v. Alabama, S13 U.S. 504 (1995) and in 1992 the Alabama Court of Criminal Appeals affirmed Harris’ conviction and sentence while noting “Alabama’s death penalty statute is based on Florida’s sentencing scheme …”


The United States Supreme Court, in denying Harris, stated, “Alabama’s sentencing scheme is much like that of Florida. Both require jury participation in the sentencing process, but give ultimate sentencing authority to the trial judge. Ala. Code §13A-S-47(e)(1994); Fla. Stat. §921.14(3)(1985)


Spaziano v. Florida is important because in this case the United States Supreme Court upheld Florida’s sentencing scheme. And the court and the Alabama attorney general, at that time, relied on this case which led to Alabama’s sentencing scheme being held as constitutional.


While begging the United States Supreme Court to rule against Hurst and not to overrule Harris v. Alabama and Spaziano v. Florida, Luther Strange listed the Alabama statutes that would be affected if the United States Supreme Court ruled in favor of Hurst, which are:




Ala. Code §13A-5-40


Ala. Code §13A-5-47


Ala. Code §13A-5-49


Ala. Code §13A-5-51


Furthermore , in denying Christopher Eugene Brooks application for stay of execution, the United States Supreme Court stated, “This court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U.S. 638 (1989)(per curiam) and Spaziano v. Florida, 468 U.S. 447(1984), two decisions we recently overruled in Hurst v. Florida, 577 U.S. … (2016). See Harris v. Alabama, 513 U.S. 504 (1995). “I nonetheless (Justice Sotomayor) vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.”


In the court’s opinion deny Christopher Eugene Brooks stay of execution states why (in the past) Alabama’s capital sentencing was upheld, and why it’s now no longer upheld and why the stay was denied.


On March 3rd, 2016 Jefferson County Circuit Judge Honorable Tracey Todd ruled Alabama’s death penalty sentencing scheme is like Florida’s and therefore unconstitutional.




What more proof does Alabama’s attorney general need? Alabama is so blood thirsty that if would rather violate the law to prove that violating the law is wrong.




Randy Lewis