Rep. Chris England, D-Tuscaloosa, has pre-filed a bill for the upcoming 2024 Legislative Session which would allow individuals on death row to be resentenced if it was because of a practice known as judicial override.
Judicial override occurs when a judge overrules a jury’s sentencing verdict to impose the death penalty. Alabama ended judicial override in 2017, becoming the last state in the country to do so, but as a result about 30 incarcerated people remain on death row as a result of the practice.
England’s proposed bill would allow individuals sentenced prior to June 1, 2024 to petition the sentencing court to be resentenced. England says that if Alabama concluded that judicial override was wrong then why shouldn’t the people sentenced by that practice be given the opportunity to be resentenced.
“And if we as a legislature determined that [judicial override] is wrong, which we did by passing a law to get rid of it, then we should afford the people who are serving on death row as a result of judicial override the opportunity to be resentenced,” England said.
However, what if one of those individuals sentenced to death because of judicial override is going to be executed despite Alabama eliminating the practice?
Kenneth Eugene Smith is that very individual as he is slated to be executed on January 25 via nitrogen hypoxia. Smith was convicted in 2000 for his role in the murder-for-hire killing of Elizabeth Sennett that occurred in 1988. The jury voted 11-1, to sentence Smith to life in prison without the possibility of parole but this decision was overridden by the judge who sentenced Smith to death.
England said he expects some push back with his judicial override legislation especially due to Smith’s execution occurring several days prior to the legislature reconvening on Feb. 6.
“Honestly, it’s a very complicated discussion,” England said. “Because quite honestly, the person we’re getting ready to execute by nitrogen gas and suffocate to death was sentenced by judicial override if I’m not mistaken…if we can recognize that maybe judges shouldn’t have unilateral power to sentence the next logical step is that then we should also afford relief to those folks that have been sentenced that way.”
As England comments Smith’s planned execution is also notable due to the use of nitrogen hypoxia, which is a method never used before in any state. Alabama’s use of the dangerous, odorless gas has drawn national attention and major concern due to the ability for the gas to endanger those in the surrounding area where the gas is distributed.
Alabama also released a redacted protocol pertaining to the use of the gas but no mention was given as to how the gas is being stored, the training of the individual administering the gas, nor how the state is procuring the gas. The gas is so dangerous the Alabama Department of Corrections had Smith’s spiritual advisor sign a document acknowledging he was at risk to view the execution. This will be the second attempt by Alabama to execute Smith as the previous attempt in Nov. 2022, using lethal injection, was botched leading to a pause in executions until July 2023.
For England although his legislation focuses on judicial override he says it is tied together because it demonstrates Alabama’s ingenuity when it comes to punishment and executing people yet never having the same creativity to fix the problems with the criminal justice system.
“I mean, it’s awful within our prison system,” England said. And we have just all these issues and we can’t figure out. Only thing I got for you is we’re building a new prison but other than that I don’t know what we’re doing. But as soon as somebody challenges us, and say you got to figure out a way to kill somebody we say hold my beer right. Honestly, it’s just amazing to watch our ingenuity and what sparks our creativity.”
Alabama is currently planning to spend over a $1 billion on a new prison facility which many critics say will still not solve the issue of overcrowding, violence and staffing shortages. In December, the ACLU of Alabama released their State House to Prison Pipeline report finding that 141 bills proposed during the last session intensified the punitive measures of the carceral system.“