The question of whether Alabama’s ban on judicial override would be implemented retroactively was supposed to be left up to courts, said the former lawmaker who sponsored the legislation.
But a last-second amendment, and the threat of a bill-killing filibuster, put language in the bill that made it clear the ban on judges overriding the wishes of juries to impose the death penalty was not to be applied retroactively.
The bill is getting renewed attention after Alabama announced its intentions to go forward Thursday with the execution of Kenneth Eugene Smith, who had his trial judge override the jury to impose the death sentence.
“Originally, and intentionally, the bill was silent on the issue of applying it retroactively,” said former state Sen. Dick Brewbaker. “We wanted to leave that up to the courts to decide on each case. And to be honest, we knew that applying it retroactively might be a deal breaker for getting it passed.”
The majority of the legislature was on board with the 2017 bill, though. It passed the House 78-19 and the Senate, 30-1.
Brewbaker declined to “rehash” the last-second amendment that nearly killed the bill. However, records from the time indicate that the amendment was introduced by former Sen. Tripp Pittman, R-Daphne, who argued that he “trusted judges” to make the call.
Media accounts from the time indicate that Pittman threatened to filibuster the bill unless his amendment was added. Nearing the end of the legislative session, a filibuster from a fellow Republican would have doomed the bill’s chances of passing.
Without that Pittman amendment, however, Smith’s execution likely wouldn’t move forward. Courts have mostly ruled in favor of those facing execution when the question of honoring a judicial override to impose the death penalty has been presented.
Smith’s execution would almost certainly be halted. The jury in his case voted 11-1 to impose a life sentence, and it provided reasoning for doing so. It noted Smith’s youth, his lack of a criminal record, his behavior and counseling record since being incarcerated and his public remorse and apologies to the victim’s family. Additionally, the lone aggravating factor – that it was a murder-for-hire crime – that made the case a capital crime eligible for the death penalty was seriously flawed.
Smith was convicted for the 1988 murder-for-hire of Elizabeth Sennett, a 45-year-old pastor’s wife. Sennett’s husband paid to have her killed and he later killed himself. Smith and his accomplice were hired by another man to carry out the job. Smith said he believed he was only going to rob Sennett to get money for her husband, who was in debt, and that he was outside of the house when Sennett was murdered.
Two different juries convicted Smith of murder, but jurors at his second trial, in 1996, voted overwhelmingly against the death penalty. Circuit Court Judge Pride Tompkins overrode that decision, despite 14 witnesses, including prison guards, testifying on Smith’s behalf during the sentencing portion.
At this point, the decision rests solely with Gov. Kay Ivey. The U.S. Supreme Court on Wednesday denied Smith’s request for a stay, and he is essentially out of viable legal options.
Two sources with knowledge of the situation told APR that Ivey is receiving bi-partisan pressure to at least delay Smith’s execution. In addition to the judicial override factor, a number of lawmakers, including several Republicans, have serious concerns over whether the Alabama Department of Corrections can adequately conduct a humane and proper execution.
There is more than a little cause for that concern. The state has botched its last two execution attempts, and has experienced serious problems in several others over the past few years. ADOC staff has had extensive problems inserting an IV into those they intend to execute, and an autopsy of Joe Nathan James reportedly found evidence the state both drugged James and that they attempted a painful “cut-down procedure” in a failed effort to locate a vein. ADOC officials have denied those claims.
However, in September, ADOC botched the execution of Eugene Miller, who later said that prison officials poked and prodded him with needles for more than 90 minutes before finally calling off his execution after being unable to access a vein to administer a lethal injection.