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The end to judicial override in Alabama is imminent

By Chip Brownlee
Alabama Political Reporter

MONTGOMERY — Alabama’s death penalty sentencing system, which allows judges to override a jury’s recommendation for life in prison, may soon be changing to put the Yellowhammer State in line with all other states that allow capital punishment.

On Tuesday, the Alabama House of Representatives overwhelmingly passed a bill that would prohibit a judge from overriding a jury’s recommendation on the death penalty through a process known as judicial override. Under the bill passed Tuesday, sponsored by Sen. Dick Brewbaker, R-Montgomery, in the Senate and Rep. Chris England, D-Tuscaloosa, in the House, a jury will have the final say on whether a defendant receives the death penalty.

The House passed the bill 78-19 in what turned out to be a short, non-controversial vote. Few spoke up against the bill and most of the debate consisted of amending England’s House bill, which required a unanimous jury verdict, to match Brewbaker’s Senate bill, which required only 10 out of 12 jurors to vote for the death penalty.

England said he was willing to give up the unanimous verdict requirement because his “first priority was to end judicial override in Alabama” but he may bring the unanimous sentencing requirement back up in future sessions.

“Why would it take a unanimous jury to convict but less than a unanimous jury to send someone to death,” England asked.

Once England’s bill was amended to match Brewbaker’s, England substituted in Brewbaker’s bill, allowing the House to vote on final passage. Now, the bill will head to the Governor’s desk for his signature.

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Bentley said Tuesday that he was prepared to sign the bill once his office conducts its routine legal review.

“I support the passage of HB32, and I want to commend Representative Chris England and Senator Dick Brewbaker for their commitment and work on this bill,” Bentley said. “HB32 will undergo the standard legal review process; however, I am looking forward to signing this bill.”

If Bentley signs the bill, Alabama will be the last state to get rid of judicial override, bringing it in line with all other states who have any form of capital punishment. England said Tuesday that he thought the change was long overdue.

“It actually undermines our system, as the Constitution guarantees your right to a jury and a trial by your peers,” England said. “So, we should reinforce to that jury that your decision is final.”

Last year, Alabama became the last state in the US with judicial override after the US Supreme Court ruled against Florida’s sentencing scheme. Over the following months, the Florida Supreme Court and the Delaware Supreme Court killed judicial override in both of those states.

The US Supreme Court in January refused to hear a challenge to Alabama’s system of judicial override from several death row inmates, including 74-year-old convict Thomas Arthur, who — after another Supreme Court decision last month — will be scheduled for his eight execution.

Arthur escaped seven previous execution dates unscathed because of several appeals.

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Even with Alabama’s legal victories, the State’s system remained 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. This was one factor that perhaps insulated Alabama’s system from Supreme Court review.

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. Under the bill passed out of the Legislature Tuesday, though, Arthur would have still gotten the death penalty.

The Southern Poverty Law Center, a legal organization that has been a strong critic of Alabama’s death penalty system, said the passage of the judicial override bill Tuesday was victory. For them, it was about ensuring no innocent person is ever put to death, they said.

“Alabama should do everything it can to ensure that an innocent person is never executed,” said Ebony Howard, SPLC’s associate legal director. “The bipartisan effort to pass a bill that would keep a judge from overriding a jury’s vote in capital cases is a step in the right direction. As of today, Alabama is one step closer to joining every other state in our nation in prohibiting judicial override in the sentencing phase of death penalty cases.”

Those who have opposed judicial override, including England, have said the existing law gives judges undue authority to issue harsher sentences to seem “tough on crime.” In election years, they say, judges issue the death penalty more often to appear tough to their constituents.

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.

England said he was proud that the bill finally passed the Legislature.

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“To finally see it come to fruition, it feels good,” England said. “I’m happy that Sen. Brewbaker, Sen. Sanders and I got to play a part in ending judicial override in the State of Alabama.”

But the bill won’t have any effect on those who were previously sentenced under Alabama’s judicial override system. The bill passed Tuesday will not be retroactive. Anyone sentenced to death unilaterally by a judge will not have his or her sentence revoked. The bill will only affect future sentences.

The Supreme Court decisions this year effectively ruled Alabama’s system constitutional, but that didn’t stop 30 senators from passing Brewbaker’s bill last month. After gaining bipartisan approval in the Senate, garnering support by House members wasn’t a complicated task.

Only one senator, Sen. Tripp Pittman, R-Daphne, voted against Brewbaker’s bill in the Senate. Pittman said after the vote that he trusts the State’s judges to make the right decisions when it comes to the death penalty.

“I have confidence in judges sitting through trials that are very complicated,” Pittman told APR. “Judges have my confidence to have that discretion. I think it’s important. … I do support the death penalty. I do think that the judges need that prerogative. Sometimes crimes are just so heinous that they rise to that level.”

If the bill is signed by the Governor, the law will go into effect within three months.

Email Chip Brownlee at [email protected] or follow him on Twitter.

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Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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