By Chip Brownlee
Alabama Political Reporter
MONTGOMERY—The US Supreme Court on Monday refused to hear a challenge to Alabama’s system of judicial override for the death penalty from several death-row inmates in the State.
In a list of orders on pending cases released Monday, the Court denied certiorari in the case of Thomas Arthur v. Alabama. Arthur and two other death-row inmates petitioned the high court in November to review Alabama’s death row laws.
Those laws allow judges in the State impose the death penalty in some capital murder cases, even when the jury refused to impose the death penalty.
Last year, the Yellowhammer State became the last state in the US to have judicial override after the US Supreme Court ruled against a similar law in Florida. Over the next several months, the Florida Supreme Court and the Delaware Supreme Court killed judicial override in two out of the last three states with the provision.
Arthur escaped death for the seventh time in November when the US Supreme Court Chief Justice issued a stay from the Court on the night of the 74-year-old’s scheduled execution. That night, Arthur’s attorneys filed two briefs before the Court.
The petition for writ of certiorari denied Monday asked the Court to review the death penalty sentencing laws, which Arthur argued were unconstitutional based on the Supreme Court’s January 2016 decision in Hurst v. Florida.
Another petition, which is still before the Court, asks the Court to review Arthur’s request for an alternative form of execution beside Alabama’s lethal injection cocktail. Arthur believes Alabama’s three-drug lethal injection regimen would be cruel and unusual, violating the Eighth Amendment.
In Hurst v. Florida, the Court ruled Florida’s judicial override laws were unconstitutional. That law, like Alabama’s, allowed trial court judges to overturn a jury’s verdict of life.
Attorney General Luther Strange said Monday in a statement that Alabama’s judicial override sentencing law is different from Florida’s and that the Court’s decision was a victory.
“The US Supreme Court’s denial of certiorari … is a reaffirmation that Alabama’s death sentencing law is constitutional,” Strange said. “Convicted murders [sic] have repeatedly challenged Alabama’s death penalty sentencing system because it allows for judicial override similar to Florida’s law.”
Alabama’s law, unlike Florida’s, requires that a jury unanimously “find an aggravating factor at either the guilt or sentencing stage” before determining a death sentence. In other words, judges can’t impose the death penalty without at least some input from the jury.
In the Hurst decision, the Court applied a 2002 decision that found that a jury must find the “aggravating factors” necessary for imposing the death penalty. Florida’s laws did not require the jury’s input on those factors.
Aggravating factors are often whether the murder occurred during the course of a robbery, burglary or kidnapping — or whether the defendant was “under sentence of imprisonment,” as was Arthur’s case.
That small provision present in Alabama’s criminal procedure giving juries the responsibility to find those “aggravating factors” likely saved the State’s sentencing system, though the Court’s exact reason is unknown.
For Alabama, Strange said, it’s still a victory.
“It should, therefore, be clear to all that Alabama’s death penalty sentencing system is constitutional,” Strange said.
But even with Monday’s legal victory, Alabama’s system remains the only “hybrid sentencing system” in the country. Juries give a nonbinding advisory sentence — either for death or for life — and the judge then makes the final determination.
In Arthur’s case, his trial jury voted 11-1 for an advisory verdict of death, but the vote wasn’t unanimous, as most other states’ death-penalty sentences require.
Since 1976, more than 92 percent of 107 overrides have resulted in a judge imposing the death penalty when a trial jury voted to recommend life in prison, according to Montgomery’s Equal Justice Initiative.
And it’s not just the Supreme Court reviewing judicial override in the State. The Legislature will take it up next month as well. Sen. Dick Brewbaker, R-Montgomery, has prefiled a bill intended to abolish the practice.
Many expected the Court to take up the challenge based on the previous successful challenge in Hurst. In the Hurst case, Alabama’s own solicitor general submitted an amicus curiae brief to the Court urging them not to strike down Florida’s system because it would likely strike Alabama’s down as well.
And in Harris v. Alabama, a 1995 Supreme Court decision upholding Alabama’s death penalty, the Court noted that Alabama’s system was “based on Florida’s sentencing scheme.”
Despite the similarities, Chief Justice Roberts hinted in November that the Court would likely refuse Arthur’s request for certiorari in the case, noting that he agreed to issue the stay as a “courtesy” to the other justices who wanted time to review the case.
“The claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three,” Roberts said at the time.
Two other justices, Associate Justices Samuel Alito and Clarence Thomas, voted against a stay in November, foreshadowing Monday’s decision.
The Court has not yet issued a decision on whether they will grant Arthur’s other petition for certiorari, which originated from a denied appeal to an Alabama US District Court and then another appeal to the US 11th Circuit Court of Appeals.
In his appeal in the US District Court, Arthur suggested a firing squad or another lethal execution drug, Pentobarbital, as alternatives to the State’s controversial three-drug lethal injection regimen.
Arthur’s attorneys argued that Midazolam, the first of three drugs in Alabama’s cocktail, would fail to do its job of sedating the inmate to prevent pain during the induction of the two other live-taking drugs, violating the Eight Amendment’s prohibition on cruel and unusual punishment.
In 2014, the US Supreme Court ruled 5–4 that the use of Midazolam as a sedative was not unconstitutional, allowing its use to continue, but Arthur argues that he has a preexisting heart condition that would render Midazolam ineffective.
The federal judge hearing Arthur’s case in US District Court rejected Arthur’s argument because he said Arthur had not identified an alternative drug regimen and a firing squad isn’t a prescribed form of execution under current Alabama law.
Arthur will now wait as the US Supreme Court looks over the submitted briefs in the pending case and decides whether they will grant review.
Last year, two death-row inmates — Christopher Brooks in January and Ronald Smith in December — were executed in Alabama after a near-three-year lull in executions, which began out of the rising scarcity of Midazolam and pending court litigation.
After the Court affirmed Midazolam, executions resumed, and Arthur was supposed to be the second on the list.
The Alabama Supreme Court has set seven different execution dates since Arthur was first convicted of the 1982 murder-for-hire of Muscle Shoals businessman Troy Wicker, and Arthur outlived them all.
If the justices of the US Supreme Court choose not to review the case, the stay delaying Arthur’s execution will expire and the Alabama Supreme Court will be able to reschedule Arthur’s execution.